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circDins^ ^^iH'^'^ip^cDsr ibibcdw^j^ 



(of PETERSBURG,) 



IN THE 



ESOUSE OF DELEGATES OF VIRGIBfIA, 



IN COMMITTEE OF THE WHOLE, 



ON THE 



QSiisia (i)ii> ^liiia miaiLii^iiaisrs) sisiswiaiasr 



THE 



United States and South Carolina. 



Delivered January 5, 1833. 
RICHMOND: 

Thomas W, White, printer. 

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Mr. Brown of Petersburg, said, that in the course of the re- 
marks which he begged leave to submit to the committee, upon the 
important subject under consideration, he should take many things 
for granted, which had afforded to other gentlemen a theme of elo- 
quent and impressive discourse. He should take it for granted, 
that all were sensible of the value of the Union, and of the disas- 
trous consequences which must result from its dissolution. He 
should take it for granted, that all were actuated by the same patri- 
otic desire to preserve at every hazard, the peace and happiness of 
our common country; and that purity and disinterestedness of pur- 
pose, which he accorded to others, he claimed for himself, and he 
claiu)ed no more. It would not, perhaps, be going too far, to pre- 
sume that all were convinced, tliat it was indispensably necessary 
that Virginia should come forward and interpose, in some shape or 
other, in the unhappy controversy to which all eyes were now turned 
with such painful anxiety. When it was adn)itted on every hand 
that the Union was in danger — when the ties which had so long 
bound the States of this Confederacy together in close and glori- 
ous fellowship, were about to be broken — when that beautiful fab- 
ric of republicanism, for the establishment of which, she had so 
freely poured forth her blood and treasure in by-gone days, was 
tottering to its fall, Virginia could not fold her arms in cold neu- 
trality, and calmly await, without seeking to avert, a catastrophe 
which, come when it might, would bury deep in one indiscriminate 
ruin, the liberties and happiuess of this hemisphere, if not of the 
whole human family. But in what mode should she interpose to 
calm the troubled elements? All exclaimed, that she must assume 
the office of mediation. He admitted that there was something so 
intrinsically lovely in the labours of the peace-maker, that we were 
impelled to this course by the finest impulses of the human heart ; 
and a few days ago, when we were first startled by the menace of 
approaching violence, in the ag'lation of the moment, he might have 
lent a willing ear to the mildt-st words of conciliation, and turned 
with aversion from the language of remonstrance. But, if that 
weakness ever affected him, it had passed away. He was in favor 
of mediation, but a cautious and guarded mediation — a mecJiation 
(if mediation it could be called,) founded in reason and justice, and 
not in the suggestions of a vi>ionary symf)athy. He would have 
Virginia declare her opinions freely and fully upon all the princi- 
ples involved in the controversy — courteously, of course — but yet 
with a decision and frankness that would leave no doubt of the 
course she would pursue under every event which could as yet be 



foreseen. Let her sister States, one and all, listen if they pleased 
and follow her advice, if they approved it. She would have done 
her duty, and should her admonitions fall unheeded to the ground, 
let the consequences be on those who contemned her friendly voice. 
Some gentlemen, he said, feared that if we censure the conduct of 
South Carolina, we should give offence, and not only defeat the ob- 
ject of our intercession, but drive that proud and sensitive people, 
already chafed and fretted with their wrongs, into still greater ex- 
cesses. Feeble, indeed, he said, must be the bond whicli holds us 
together, if this or any other State, could not freely express its 
views upon matters equally interesting to all, without being chal- 
lenged for insult or arrogance. If this Union, the citadel of our 
liberties, was so weak and ruinous that the warder "on the watch- 
tower could not proclaim the approach of danger, lest his voice 
should shake the crumbling edifice to the earth, let it fall at once, 
for it was no longer a means of security or defence. The gentle- 
man from Fauquier, sought to obviate this difficulty by the adop- 
tion of a single resolution requesting South Carolina to repeal her 
Ordinance, without assigning any other reason than that it may en- 
danger the Union. Could that gentleman, in his most sanguine 
moments, flatter himself with the hope that our request, preferred 
under such circumstances, would be complied with ? Did he not 
remember the fearful deliberation with which South Carolina had 
advanced to her present position — her resolutions — her protests — 
her manifestos — her spirit-stirring addresses — her final declaration, 
in wliich she had proclaimed to the world, that her grievances 
were no longer tolerable, and she woald redress them — peaceably, 
if she could — forcibly, if she must. Standing committed as she 
did before her sister States, would she, at the bare bidding of Vir- 
ginia, abandon her measures and retrace her steps ? Had we any 
reason to believe thai the influence of the " Old Dominion" was 
so commanding — so especially potent over South Carolina, that 
her mere suggestion would produce this almost miraculous efiect ? 
Or did we persuade ourselves that Carolina was merely playing the 
braggadocio in the face of nations, and after startling us with appa- 
ritions of disunion and blood, waited only for a pretext to shrink from 
the contest she had provoked ? Her Convention was adjourned — 
her Legislature gone to their homes — the first of February was 
rapidly approaching — every stale paper that she issued — every mea- 
sure she adopted — indicated a determination to press forward in her 
purpose, and even to close the door to retreat. And yet the gentle- 
man from Fauquier believed that when Virginia invoked her to de- 
sist, from a regard for that Union, whose value she had already 
calculated, like a charmed spirit under the wand of the magician, 
she would obey, without even questioning the cause, or demanding 
an equivalent. He said we could not expect — we could not wish, 
even for the sake of the benefits which might result from it, that a 
people confessedly brave and chivalrous even to a fault, should act 
so puerile a part — exhibit so lamentable a spectacle of imbecility. 
There was one event, and only one, in which our overtures, in the 



shape proposed by the gentleman from Fauquier, could prove effec- 
tual. If South Carolina should believe that a compliance with our 
request, and a repeal of the Ordinance, would impose on Virginia 
an obligation to find otiier and sufficient means of redress, to accom- 
plish the object at every hazard, she would, no doubt, accede to 
our proposition. She would then have gained an ally ; and might, 
without loss of dignity or honor, change her attitude and renew the 
contest under different auspices. Was Virginia now prepared to 
pledge herself that the protective system should be overthrown, 
even though the Union shoidd fall with it ^ 

There was but little difference of opinion in this commonwealth, 
as to the unequal and oppressive operation of this system. Ue 
chiimed no mofe consistency for himself, on this or any other sub- 
ject, than he allowed to others ; but it was a reminiscence of some 
value to him, and perhaps he might be pardoned for alluding to it, 
that his earliest essay in politics, was in reprobation of a protective 
tariff. When he first stood at the threshold of public life, and put 
forth u step to enter, the greatest, and he might almost say, the only 
obstacle in his way, was the zeal with which, to the extent of his 
humble abilities, he opposed this odious policy of forcing manufac- 
tures prematurely into existence. He had, however, always thought 
that the legislation on this subject was a perversion of the spirit and 
intent of the Constitution, rather than a violation of its literal provi- 
sions. The power " to lay and collect taxes, duties, imposts, and 
excises, to pay the debts" of the nation, and for other specified ob- 
jects, vested in Congress the discretion to judge what amount of 
revenue was necessary for the purpose. jMore revenue might be 
raised than was required for the objects contemplated by the Con- 
stitution ; and this might be done designedly, in which case it was a 
wilful abuse of a discretionary power, but it was an abuse perpe- 
trated wi:hin the forms of the Constitution, which had provided no 
check or corrective as to the amount of revenue to be raised. The 
Constitution had enumerated the objects for which revenue should 
be raised ; and no matter how raised, or to what extent, it could not 
be appropriated to any other objects than those specified. In all 
cases where an appropriation was to be made, it was perfectly easy 
to decide whether it was constitutional or otherwise. When money 
was raised by the Federal Government, and expended in the con- 
struction of a road or canal, we were able to decide at once, that the 
object of appropriation was not contemplated by the Constitution, 
and that the violation was in the secondary stage of the operation; 
so, if revenue after being raised, were bestowed on the manufactur- 
ers in the form of bounties for their encouragement, we could lay 
our finger on the infraction. But it happened in regard to this 
protective systen), that the purpose was effected in the process of 
raising the revenue, without the necessity of an appropriation. The 
protection to manufactures was incidental ; and whether it were the 
primary or secondary motive, the secret or the avowed object of 
laying imposts, the violation was accomplished under cover of the 
exercise of a discretionary power. It was a measure of policy not 
foreseen by the parties to the Constitution, and was productive of as 



decided benefit to the manufacturers and injury to other classes of 
the conimunii}', as if premiums were conferred directly on them ; 
but still it could only be characterized as an unconstitutional object 
effected by constitutional means. 

Oppressive, however, as this system was admitted by all to be, and 
repugnant as it unquestionably was to the spirit of the Constitution, 
had we not, he said, abundant reasons for believing that it would speesi^ 
dily be abandoned by Congress? The public debt was now virtually 
extinguished, and the condition of our country such as had never 
before existed since the formation of the government. When this 
infant confederacy came forth triumphant from the war of the revo- 
lution, it was heavily oppressed by financial embarrassments, and 
from that period up to the present, tliere had been a continued ne- 
cessity for heav}' taxation ; not simply to defray the current ex- 
penses of the government, but to pay those debts which might justly 
be considered the price of our independence. Whilst a large amoimt 
of revenue was wanted, what was more reasonable, what more poli- 
tic, than that some incidental aid should be given to a branch of 
industry just struggling for existence, and claiming to be stimulated 
by patriotic motives ? But what an altered spectacle was now ex- 
hibited. Notwithstanding the fresh accumulation of debt from our 
late glorious war with Great Britain, we had a flourishing com- 
merce, an overflowing treasury, and owed not a cent in t!ie world. 
The present Chief Magistrate of the United States, by a line of 
policy, which for its justice and wisdom, and the consistency with 
which it had been pursued, had never been exceeded in our past 
history', was bringing back the Federal Government, in its practical 
operation, to its appropriate limits. He had arrested the unconsti- 
tutional expenditure of the public money upon works of internal 
improvement, and thereby given the death-blow to an extensive sys- 
tem of fraud and extravagance. He had faithfully applied the pub- 
lic resources to the discharge of the national debt, and thus closed 
forever, a heavy and incessant drain on the treasury. He had evinced 
a determination to reduce the expenses of the government to the lowest 
point of economy, consistent with its efficiency and respectability ; 
and after lessening to the utmost practicable extent, the demand for 
revenue, he had availed himself of the occasion to vindicate the Con- 
stitution, by putting an end to the United States Bank, which owed 
its existence to the pecuniary embarrassments of the government, and 
could no longer be defended as a necessary facility for the manage- 
ment of the fiscal concerns of the nation, simple and limited as 
those concerns must for the future be. Under such circumstances, 
what pretext was left for keeping up a high rate of duties? Let 
us not, he said, be in haste to break up the Union for the fear of 
unjust and onerous taxation. The days of the Tarlfl' and the 
American System were already numbered. The people would pay 
all that might be necessary for the support of the government, but 
no people ever yet voluntarily submitted to pay more ; and it 
should not be forgotten, that we had given a memorable proof of 
our Impatience under unjust taxation, in the struggle which sepa- 
rated us from the crown of England. The resistless mandate of 



public opinion, which would soon be audible throughout the land, 
would settle the doom of this iniquitous system ; and it was our 
duty as patriots and philanthropists, patiently to await this peaceful 
and salutary consummation. Witli such prospects before us, he 
again asked, whether Virginia was ready to pledge herself to follow 
fhe fortunes of South Carolina, rash and impatient as she had 
proved herself to ber" Take but the first step with her, and retreat 
was impossible. It might be that our fair and reasonable expecta- 
tions of relief from Congress would be disappointed — that a short- 
sighted and relentless majority would refuse, for a time, and perhaps 
for years, to relinquish their customar}' exactions from the fruits of 
our industry. In that event, the countenance and support which we 
might promise to South Carolina to-day, would, in the end, be re- 
quired at our hands; and national faith and honor would leave us 
no alternative but to walk with her, if she willed it, through *' the 
valley and shadow" of disunion. He wished to impose no restraint 
on the independent action of Virginia hereafter. If our hopes of 
relief from Congress should fail, it would be time enough to decide 
on ulterior measures — South Carolina had already decided in ad- 
vance. But he would not now, either expressly or by such impli- 
cation as might grow out of the vague proposition of the gentle- 
man from Fauquier — and as must grow out of it before it could 
have any eflect — give assurances to South Carolina of support in 
any measures not strictly warranted by the Constitution. 

As he was not, he said, in favor of throwing Virginia into the 
arms of South Carolina, and the candid and impartial expression 
of opinions which he recommended, might not have the eftect of 
inducing that Slate to abandon her measures, he had reflected with 
much anxiety upon the probabilities of an interruption of the peace 
and quiet of the country, provided the ordinance and laws of nul- 
lification should be permitted to take eflect, and had brought him- 
self to the conclusion that there was but little danger of any speedy 
resort to force on either hand. The advocates of nullification had 
always contended strenuously, that it was a pacific remedy ; and 
while It was impossible to view it as such, in its ultimate tendency 
and consequences, he trusted its very first operation would not falsify 
the promises of its authors. He would, for a moment, attempt to 
trace the action of this most subtle and mysterious device. If an 
importation of goods were made to the port of Charleston, and a 
bond given for the duties, a suit must be brought by the govern- 
ment, and as a matter of course, the jury would find for the de- 
fendant, being sworn to give eff'ect to the ordinance and act of nul- 
lification. No appeal could he taken, because it is made the duly 
of the Court below, to deny a copy of the record of the proceed- 
ings. If, however, a judgment should be obtained by the govern- 
ment, no obstruction was to be offered to the Marshal in levying an 
execution, and he might proceed to make sale of the goods ; but 
the law of the State provided that no title should be acquired by a 
purchase under such sale, and the property might even be re- 
covered again by the owner, so that, of course, there would be no 



8. 

purchaser. It was manifest here, that there was no necessity for 
the use of force on the part of the State, and no pretext for it on 
the part of the United States, which assuredly had no authority to 
compel a verdict from a jury, or a copy of the record from the 
Court, at the point of the bayonet. If the goods imported were 
such as no credit is allowed upon, by existing laws, the revenue 
officer would detain the requisite portion of them, until the duties 
were paid. In this case the importer was authorized to sue out a 
writ of replevin, by virtue of which the Siieriff would seize the 
goods and deliver them to him, pending the decision of the action 
of replevin, which would, of course, result in his favor; or, if the 
identical goods were not forthcoming by a fresh process, called a 
capias in ivithernnm, reprisals to double the amount were to be made 
out of the proper goods and chattels of the collector. Here, again, 
it was evident that the United States could find no occasion to exert 
force, unless, indeed, it were determined, contrary to law and autho- 
rity, to resist the process of the judicial tribunals of the State. He 
was far from intimating that there was no remedy for this flagrant 
evasion of the revenue laws. It might, and no doubt would become 
necessary, if the Ordinance were carried Into eftect, for Congress 
or the co-states to adopt measures of a coercive character for giving 
eflect to the laws, by closing the ports of the State, or by some 
other expedient, which it was premature to discuss. But what he „ 
wished to impress on the minds of gentlemen was, that the Presl- Ij 
dent could not legally, and would not resort to any such extraordi- 
nary means of compulsion, unless the Executive arm was strength- 
ened by further legislation. In his recent proclamation he had said 
very properly, and had said no more than that he would employ 
force to repel a forcible obstruction of the laws ; but if, as was mani- 
festly the case, the laws of South Carolina did not authorize a forci- 
ble resistance to the laws of the United States, a collision could 
not occur, unless the one party or the other should transcend its 
powers. If that State should, through a Convention of her people, 
the organ of her sovereignty, ordain a forcible resistance of the 
revenue laws, it would be a matter for the solemn deliberation of the 
co-states in Congress assembled, to decide what measures should be 
taken for maintaining the supremacy of the Federal Government ; 
and it could scarcely be questioned that in that event, the State 
must either be regarded as without the pale of the Union, and ac- 
countable for her conduct as a sovereign power, according to the 
terms of the compact, or if subject still to the Federal Constitution, 
must be compelled to yield obedience to the laws. But he did not 
think such power of coercion was conferred on the President by the 
existing laws, and he did not understand him as claiming it. He 
was clothed with authority to employ the military force of the coun- 
try, In dispersing insurgents, and suppressing combinations of in- 
dividuals opposing the execution of the laws ; but the extraordinary 
case of resistance by a State, through Its constituted authorities, 
seemed not to have been foreseen or provided for. He, therefore, 
felt assured that whatever might be the issue of this unhappy con- 



trovers}', there was no danger of actual strife or bloodslied, even 
should the ordinance of South Carolina be carried into effect, un- 
til after the matter hatl been submitted to the consideration of Con- 
gress; and, in order to add to the public confidence on tliis subject, 
he wished in the resolutions to be adopted by the General Assembly, 
earnestly to represent to the President the propriety of this course. 
He said, if he had satisfied the committee that the danger of civil 
war was not so imminent as to forbid deliberate and cautious action 
on the subject, he hoped it would be regarded as a fit occasion for 
Virginia to express her opinions without reserve upon all the topics 
involved in the controversy. He said he had not heretofore been 
in favor of the frequent assertion of abstract doctrines on the part 
of the Legislature, and thought the dignity and force of some great 
fundamental truths had been weakened by repetition on ordinary 
occasions, without the adoption of any ulterior measures for their 
establishment. But surely, if ever there was a time when the vin- 
dication of the true principles of our government was important, that 
lime was the present. He trusted in heaven that the peace of the 
country would be maintained, and that the clouds which were ho- 
vering around us might soon be dispersed ; but as it was not for 
human vision to penetrate the thick veil of coming events, it was 
the part of wisdom to be prepared for tiie worst. The Union was 
in danger as all admitted, and from the period of the formation of 
the Federal Constitution, the State Legislatures had been looked 
to as sentinels on the watch-towers of liberty, to sound the alarm to 
the people. Should that assembly prove faithless to their trust, 
and the storm uidiappily burst upon the land, it was easy to con- 
ceive, from the consternation which recent events had produced in 
that small body, the dismay and confusion which must pervade the 
great mass of citizens who have no means of consultation but through 
their representatives. It was a fearful thing to see the foundations 
of government uplifted, and all the elements of social being thrown 
into wild commotion. There were passions at the bottom of the 
human heart, which in times of peace slumber so quietly that their 
existence was not suspected, and woe unto the people, who even in 
the glorious contest for freedom should incautiously stir up this fa- 
tal sediment. Had France in her first and noblest struggle for li- 
berty, had a chart to guide her footsteps and regulate her energies, 
instead. of tarnishing her name with blood and terminating her wild 
and impetuous career in impotence and disgrace, she might have 
brought forth triumphantly from the horrors of revolution those cap- 
tivating principles which she long sought with such ardent but fruit- 
less devotion. As yet, he said, all was calm and tranquil as the 
surface of a summer's sea — and that was the time for the represen- 
tatives of the people, whose opinions were but the reflected voice of 
their constituents, to agree upon the course the Commonwealth 
should pursue under the expected emergency. That was the time 
to fix the land-marks — to prescribe the watch-word and the signal 
— so that when the tempest should come, if come it must, we might 
2 



10 

meet it undismayed, and follow with confidence as one united peo- 
ple, the path of dut}' and safety. 

And what, he said, were the principles which it was important 
to avow on this occasion ? For his own part, he wished to see pre- 
sented anew to the public mind, in order that they might make a 
fresh and vivid impression, those great outlines of our admirable 
system of Government, which had been so faithfully and beautifully 
drawn in the Resolutions of '98, and the Report of '99. It was 
important to free the original text from those spurious constructions 
and interpolations, which had been made upon it, for the purpose 
of countenancing the assumption of unauthorized powers by the 
Federal Government, on the one hand, and the factious interposi- 
tion of individual States on the other. The Constitution of the 
United States, the palladium of our rights, our liberties, and our 
happiness, wiiich, if fairly interpreted and administered, would fully 
attain the great ends for which it was formed, was in danger of vio- 
lation, as well from the usurpation of power by the Federal Go- 
vernment, as from attempts on the part ofthe States to withhold 
from that Government, the exercise of powers clearly conferred on 
it. The recent Proclamation ofthe President of the United States, 
which seeks, in the opinion of many, too sedulously even for the 
laudable object of preserving the Union, to strengthen the Federal 
Government, had rendered it the more important to re-affirm the 
doctrines of '98. That Proclamation seemed to him to contain 
principles incompatible with those that Virginia had long and stre- 
nuously maintained ; and, although they were nut carried out into 
practical application, there was reason to fear, that unless promptly 
disclaimed, they might sink too deeply into the public mind. The 
object of every friend of rational liberty was to save the Union; and 
in pursuing this noble purpose, with undivided aim, it was reason- 
able to apprehend that the people might not, in the ardour of their 
patriotism, examine with sufficient care, the means by which it was 
to be accomplished. It was his wish to preserve the Union ; and, 
if the worst should come, he would cling to the last remnant ()f it — 
but, as he did not yet despair of its safety, and did not think the 
danger so imminent as to call for the surrender of a part of the sys- 
tem, in order to save the balance, he would still contend for the 
whole, and endeavor to preserve it in its pure and pristine propor- 
tions. Instead of rushing panic-stricken into either extreme, he 
wished, if possible, to avoid all excitement or alarm and cooly con- 
sider the means not only of saving the Union, but of saving the Con- 
stitution, and of saving it unmutilated by nullification on the one 
hand, or consolidation on the other. 

He had been equally grieved and surprised at the abstract doc- 
trines of the Proclamation, as he understood them. He would fain 
persuade himself still, that the President had not intended to as- 
sert, in their full extent, the opinions which are deducible from that 
document : and when he reflected on the early devotion of that dis- 
tinguished citizen, to the pure principles of Republicanism, and 
the many recent proofs he had given of his respect for the rights of the 



11 

Slates, he was almost tempted to suspect that some " cunning clerk" 
of the Federal school, entrusted, as is usual, with the adjustment of 
details, had abused the confidence of his superior. The President 
was not, and had never professed to be, a man of details ; — he was a 
man of results — of action — and his long career of usefulness had 
afforded a happy illustration of the superior value of such talent, 
over the unprofitable, if not miscliievous acumen of the subtle and 
metaphysical theorist. It was remarkable that whilst the objects of 
the Proclamation were unquestionably good, and the conclusions 
generally correct, the exposition and reasoning which led to them 
were highly erroneous. The premises embracing doctrines most 
repugnant of the true theory of our government, did not seem ne- 
cessary in all cases, to the conclusions : — as for instance it was not ne- 
cessary to deny the sovereignty of the States, in order to show that 
they had not a right at pleasure to secede. Certain it was, that 
if the President intended to promulgate the doctrines wiiich the ar- 
gumentative part of his Proclamation seemed to involve, the web 
was so curiously and ingeniously woven, that though there could 
not in the end be a doubt about its meaning, yet there was not a 
man, even the most intelligent, who did not find it necessary to read 
that argument again and again, before he could be satisfied as to 
its full scope and tendency. He knew very well the vagueness and 
fallacy of language, and how difficult it was in treating a theoretical 
abstract subject, to avoid misapprehension. This consideration ad- 
monished him of the probability that injustice migiit be done to the 
President in the construction of this state paper ; but wiiilst he con- 
tinued to understand it in the sense which he did, he was ready to 
protest against the erroneous principles it contained, and to contri- 
bute iiis mite in laying them low before the majesty of the true 
principles of the Constitution. But when he had said jhus much, 
he wished it to be distinctly understood, that he should not concur 
in denouncinir, as some gentlemen seemed eager to do, the Presi- 
dent of the United States, whose integrity and patriotism he held 
in the highest estimation. When he remembered the signal proofs 
he had given, of a desire to confine the General Government, in its 
practical operation, within its appropriate limits, and felt liimself 
constrained to admit, what no one indeed could deny, that his ad- 
ministration, take it for all in all, had been one of^ the best with 
which the country had ever been blest, he could not think of withdraw- 
inii his humble support from that individual, because he had fallen 
into a single error, however dangerous that error might be. What- 
ever might be thought as to the intent and meaning of the Presi- 
dent in regard to the abstract doctrines discussed in the Proclama- 
tion, there could be no mistake about the practical character of his 
administration, which was such as had hitherto met the hearty ap- 
probation of the friends of State rights. When he reflected on the 
eminent services that citizen had rendered his country — how much 
the South, in particular, was indebted to him for the salutary mea- 
sures of his administration, and how much they might yet expect 
from him, if a proper support were given him, he could not with- 



12 

draw his confidence from him, or unite, in any degree, with his se- 
cret or avowed enemies, in denouncing him to the people of Virgi- 
nia. He would go as far as any man, in maintaining the principles 
of the Constitution; but it was not necessary for that purpose to as- 
sail the President, much less to hold him responsible for what, per- 
haps, he did not intend. 

The leading object of the Proclamation was to show that a State, 
as such, has no right, other than such as belongs to any portion of 
people, to wiilidiaw from the Union, and in support of that propo- 
sition it contended that tiie Federal Constitution is not a compact 
between separate and independent States, but resulted from the peo- 
ple of the United States, who were " one nation" when they formed 
it_such at least appeared to him the meaning of the following pas- 
sages in that document:— "The unity of our political character 
commenced with its very existence. Under the royal government 
we had no separate character — our opposition to its oppressions be- 
gan as united colonies. We were the United States under the Con- 
federation, and the name was perpetuated and the Union rendered 
more perfect by the Federal Con^titution. In none of these stages did 
we 'onsider ourselves in any otiier light than as forming one na- 
tion." And again : " The people of the United States formed the 
Constitution, acting through the State Ligislatures, in making the 
compact, to meet and discuss its provisions, and acting in separate 
Conventions when they ratified those provisions ; but the terms 
used in its construction, show it to be a Government in which the 
peopleof all the States, collectively, are represented." The next 
position assumed was, that the States are not sovereign under the 
Constitution, and "each State having expressly parted with so 
many powers as to constitute jointly with the other Slates, a single 
nation, cannot from that period possess any right to secede, because 
such secession does not break''a league, but destroys the unity of 
the nation." These passages, which went, as he thought, to show iliat 
the Constitution is not a compact made between the Slates in their 
sovereign capacity, and that tlie States are not sovereign under its 
provisions, comprised his objections to the Proclamation. They 
were illustrated in that paper by a variety of references to the popu- 
lar features of the Government, the pervading fallacy of which, was, 
that by an inversion of reasoning, the nature of the compact, and 
the character of the parties to it, were deduced from the mode of 
action of the Government to which that compact gave birth. 

It could not, he said, be denied, that whilst the States of this 
Union were colonies of Great Britain, they were united by no direct 
tie whatsoever. They owed allegiance to the same crown, but were 
separate and distinct dependencies. They were less connected than 
are Scotland and Ireland since the Union under the British Govern- 
nient— for, those States, by their terms of Union, sit and act to- 
gether, through their representatives, in the same parliamentary 
body; whereas the American Colonies had separate governments, 
derived from their respective charters or proprietory grants, and 
met each other neither in Parliament nor in any other common 



assembly. Dr. Franklin, in Iiis examination before the House of 
Commons, in 1776, snid, " the Colonies are not supposed to be 
within the realm ; they have Assemblies of their own, which are 
their Parliaments, and they are in that respect in the same situation 
wiih Ireland," «hich it would be recollected, was not then incor- 
porated with England, b}' the act of union, but was a mere depen- 
dency- They liad each within itself all the internal organization of 
complete governments, with no other restraint on their right of in- 
dependent action, than the allegiance due to the crown, and when 
that ceased, the}^ were as absolutely uncoimecled with each other, 
as would be Jamaica and Canada or St. Helena, if the island of 
Great Britain were suddenly sunk in the ocean. 

It was true that the Colonies, in concerting measures for resisting 
the oppressions of the mother country, conferred with each other 
f(ir years before the Declaration of Independence, through deputa- 
tions from their Legislative Assemblies; but it was obvious that no 
formal connection, amounting even to an alliance, took place be- 
tween then), previous to the adoption of the articles of confederation. 
The Massachusetts Circular, of June 1765, one of the earliest in- 
terchanges of opinion amongst tiie Colonies, and which led to the 
Congress at New-York in October following, merely recommended 
that committees should be sent from the several Assemblies, to con- 
sult together on the siil)ject of tiicir common wrongs. The Gene- 
ral Congress, at Philadelphia, in 1774, as well as that of 1776, 
was composed of deputies chosen by the Colonial Assemblies. — 
These delegates united, on various occasions, in making a joint de- 
claration of their grievances and adopting addresses and petitions 
to the King and Parliament. They finally united in declaring 
themselves independent; but none of these acts, not even the last, 
could be regarded as an alliance atiecting in any degree, the poli- 
tical character of the Colonies. By the Declaration itself, they are 
styled " free and independent States,^' " and that as free and inde- 
pendent states, they have full power to levy war, conclude peace, 
contract alliances, establish commerce, and to do all other acts and 
things which independent States may of right do." According to 
]\Jr. Jeflerson's memoir of the debate on that occasion, it was urged 
"That if the delegates of an}' particular colony had no power to 
declare such colony independent, certain they were, the others 
could not declare it for them ; the colonies being as yet perfectly 
independent of each other ;" and the warmest advocates of the de- 
claration said, in reference to the propriety of a previous confede- 
ration, " that it would be idle to lose time in settling the terms of 
alliance, till we had first determined we would enter into alliance." 
Some of the Colonies, and Virginia amongst the rest, asserted 
their independence prior to the general Declaration, and actually 
proceeded to organize new governments. On the 12ih July, 1776, 
a few days after the Declaration of Independence, the original draft of 
the Articles of Confederation was first presented to the Congress, 
and after two years debate and consideration was ratified, on the 
9th of July, 1778, by ten of the States, and subsequently by the 



14 

others — Maryland acceding on the 1st March, 1781. This com- 
pact, which was the first act of confederation between the Colonies 
or States, not only recognises their previous sovereignty, but gna- 
rantees it for tlie future. In the third article of that instrument it is 
stated, tliat " The said States hereby severally enter into a firm 
league of friendship with each other, for their common defence," 
&ic. ; and again, in the second article, that "each State retains its 
sovereignty, freedom and independence," &ic.— expressions which 
leave no doubt as to the sovereign characterof the States under the 
confederation. 

The States then, he said, were sovereign np to the time of the 
adoption of the Constitution. Was there any thing in the circum- 
stances under which it was formed, or in the manner of its ratifica- 
tion, which tended to prove that the parties were not sovereign ?— 
That instrument was framed by a Convention of Delegates from tlie 
Legislatures of the several States assembled at Philadelphia, on the 
second Monday in May, 1787, in pursuance of a resolution of the 
Congress of the confederation, adopted on the 2 1st of February of 
the same year. The Constitution was an amendment of the Arti- 
cles of Confederation and adopted as a substitute for it by the same 
parties. Tiie Resolution of Congress, calling the Convention, 
states it to be " for tlie sole and express purpose of revising the 
Articles of Confederation, and reporting to Congress and the seve- 
ral Legislatures, such alterations and provisions therein, as shall 
when agreed to in Congress, and confirmed by the States, render 
the Federal Constitution adequate to the exigencies of government, 
and the preservation of the Union." The 13th Article of the Con- 
federation declares that those Articles "shall be inviolably observed 
by every State, and the Union shall be perpetual; nor shall any 
alteration, at any time hereafter, be made in any of them, unless 
such alteration be agreed to by a Congress of the United States, 
and be afterwards confirmed by the Legislatures of every State." — 
The Convention laid the work of their hands before Congress in 
conformity with the foregoing provision, and advised " that it should 
afterwards be submitted to a Convention of Delegates, chosen in 
each State by the people thereof, under the recommendation of its 
Legislature, for their assent and ratification." Since then the Ar- 
ticles of Confederation could not be altered without the assent of 
every State; and the Constitution was, in fact, an alteration nmde 
in the specified manner, it followed, he said, that-the alteration or 
in other words, the Constitution, could only be adopted by the par- 
ties to the confederation, which had already been shown to have 
been sovereign. 

In ratifying the Constitution, the people of each State assembled 
in Convention, were regarded as forming a separate and distinct 
political body — not a party to the compact, nor bound by it, until 
its assent had been expressly given. It was provided that the new 
government should be organized as soon as nine States should have as- 
sented ; and had the other four States rejected it, they would, in no de- 
gree, have been bound, in consequence of its ratification by the others. 



15 

This was clearly shown by the historical fact, that some of the 
thirteen States did not come into the Union, until after the Federal 
Government went into operation. North Carolina did not ratify 
the Constitution until the 1st of August, 1788, and Rhode Island 
not until tiie 16tli of June, 1790, whereas the new Government was 
organized witiiout the participation of these two States, and com- 
menced its action on the 4ih of March, 1788. In the interval these 
States kept entirely aloof from tlie Union, and so far from consider- 
ing ihen)selves subject to the Federal Constitution, or under any 
obligation to accede to it, some of the ablest debaters in the Con- 
vention of North Carolina, contended that as the Articles of Con- 
federation could not be altered without the assent of every State, 
any one Slate had a right to insist on their being adhered to by 
all. This wa^ unquestionably true, and the difficulty could only 
have been ren)ovetl by the common consent of all the States, which 
was at last obtained. The Constitution was not regarded as re- 
sulting from the people of the States collectively, nor was it submit- 
ted for their ratification as one mass. The several State Conven- 
tions were not mere agents or conveniences, for collecting the ge- 
neral will of the American people, but constituted the separate and 
independent bodies politic, wl.o were to become parties to the com- 
pact. Had the Constitution been submitted for the adoption of the 
people of the United States, as one people, there would have been 
an absurdity, in allowing to each of thirteen different masses of 
that people a right of rejecting it. On the contrary, if that were 
true, wliilst these masses might be used as convenient sub-divisions 
for ascertaining the general will, the several majorities and minori- 
ties, should have been brought together, the balance struck, and 
the decision of the aggregate majority been made obligatory on all. 
These masses were of very unequal size, so that nine of the smallest 
of them, did not contain a majority of the population of the thirteen, 
and it might have happened, according to the mode of ratification 
adopted, that the Constitution might have been carried into effect 
against the will of a majority, by a minority of the whole, even sup- 
posing the people of the nine masses to have been unanimous in its 
favor. Had the majorities in those masses or States been small, 
an extremely small minority of the whole would have established 
the government, in opposition to the non-adopting masses, having a 
majority of the population exclusive of the large dissenting minori- 
ties in the adopting masses. On the other hand, five of the smallest 
masses, might have defeated the Constitution, and if the majorities 
were inconsiderable, a fraction above one half of their population 
would have had equal power. If the Constitution had been re- 
garded as emanating from one people, or intended to form a govern- 
ment or compact for one people, it would have been obviously just, 
that the concurrent voice of a majority of that people, should be ne- 
cessary, either for its rejection or adoption; and as the mode of ra- 
tification pursued was wholly subversive of this principle, it was 
fair to treat it as an evidence of the purely Federal character of 
the compact. 



16 



This principle of ratification by llie States, as such, was not only 
acted on at the adoption of tlie Constitution, but was recognized and 
perpetuated in that instrument by the provision, requiring, the assent 
of three-fourths of the Slates, acting through their Legislatures or 
Conventions of their people, for its amendment: whereas, if the 
compact had resulted frotn one integral community, or been intend- 
ed to establish a government for one collective people, the power of 
amendment ought to have been lodged in a majority of that people. 

The social compact, he said, was the primitive means by which 
individuals were formed into a bod}' politic. When thus combined, 
the sovereign power resided in a majority of the people, who, ac- 
cording to our Bill of "Rights, had the authority to reform, alter or 
abolish the government. It would be admitted, he presumed, that 
the people of Virginia were united by a social compact, and had a 
government of their own, previous to the confederation and the adop- 
tion of the Federal Constitution, which was an amendment of it. 
That Constitution made an important change in the government of 
Virginia, and he would ask how that change could have been sanc- 
tionesd or made valid, otherwise than by the assent of a majority 
of the people of Virginia, constituting the sovereign power of the 
State. As the power of altering the constitutional compact resided 
only in the people of the State, their action in ratifying the Federal 
Constitution, vvhicii so materially aflected that of the State, must 
have been exerted in their distinct, sovereign capacity. 

The sovereign power of one State had no right to interfere in 
forming or altering the constitution of another State. Virginia and 
Maryland, for instance, were distinct political communities, and 
whilst each might modify its own constiiution, neither could inter- 
fere with the constitution of the other ; nor could all the Slates 
unite in modifying the constitution of each. Tlie social con)pact 
must precede the constitutional conipact. This was necessary to 
give unity to tiie people, and create the right to exert their will by 
a majority. Before the people of all the States, collectively and at 
large, could form a constiiution for the whole, they must previously 
have existed, not as distinct political bodies, but as one political 
body, bound together by a general compact, whereby the su- 
preme power was concentrated in a majoiity. He presumed it 
would not be contended, that the people of the states, at the adop- 
tion of the Constitution, were thus consolidated intoone community 
by a social compact; and, without such pre-existing compact, even 
the confluent voice of a majority, collected through the machinery 
of the States, could not rightfully have originated or established a 
single government for all. 

The only argument, he said, which could be opposed to these 
illustrations of the purely federative character of the Constitution, 
was that derived from the words in the preamble of that instru- 
ment : " We the people of the United States, he. do ordain and 
establish," he. It was perfectly fair to construe this phrase, as 
meaning the people of the several States, acting in their respective 
sovereign capacities. The language no more implied a collective 



17 

action llian it did a several action. It was equally susceptible in 
itself of either interpretation, and standing alone it proved nothing. 
Its meaning was controlled and settled by the history of the Consti- 
tution. The people of the United States in one sense did ordain and 
establish the Constitution; but as they existed in distinct communi- 
ties and not in one general community, it must have been intended 
that they acted in the former character, and not in the latter. It was 
unnecessary and inconvenient, in a preamble so short and general as 
this, to describe minutely the parties to the instrument, or the mode 
in which it was formed, when both of these circumstances were 
so satisfactorily explained by historical facts.* The expression was, 
doubtless, selected for its brevity, without apprehension of its being 
misconceived ; and it was, probably, for the same reasons, that the 
preamble of the Articles of Confederation was made to read, 
" Whereas the Delegates of the United States of America," Uc. 
The Delegates of each State agreed to the Articles of Confedera- 
tion, precisely on the same principle that the people of each State 
ratified the Constitution ; and yet it would not be denied, that the re- 
spective delegations, in acceding to the Confederation, acted seve- 
rally, as States, and not collectively. 

• Having arrived at tiie conclusion that the Federal Constitution 
was formed by the States, as parties, in their sovereign capacity, 
Mr. }3. said, he would now proceed to examine how far the sove- 
reignty of each State was aflected by the adoption of that instru- 
ment. A Stale or nation was ordinarily considered as sovereign, 
when it was free and independent of all other nations. The States 
of this Union had associated themselves by a common bond, so as to 
constitute, in reference to other nations, but a single nation, and 
bad vested in the General Government such attributes as were ne- 
cessary for establishing and maintaining the customary relations 
with foreign powers. To the other nations of the earth, we pre- 
sented an undivided front. They could view us only as one sove- 
reign people, and were no farther concerned in our internal rela- 
tions, than to know to which department is entrusted the power of 
making war, peace and treaties. But the parties to this confede- 
racy were not consolidated, and the character and rights of the 
States, in relation to each other, and not in relation to foreign pow- 
ers, constituted the important subject of present inquiry. And here 
it was necessary to distinguish clearly between sovereignty and the 
government or agents, who at the will and pleasure of that sove- 
reignty, exercise, for the time being, its attributes. Sovereignty, 
he said, was that power in every independent State which governs 
in the last resort, and has an acknowledged right to change without 
violence, the fundamental laws of the community. In England, 
that power resided in the Parliament ; for, although, in theory, 
there were constitutional checks, yet if Parliament should alter or 
abrogate them, it would be considered as revolution in the people to 
resist it. In other governments this supreme power was lodged in 
privileged orders, more or less numerous — sometimes in the crown 
— and just in proportion to the distance it was withdrawn from the 



18 

people, and to the difficulty of their recovering it, did the govern- 
ment assume the character of a despotism. In onr own favored 
country, it was acknowledged, in the language of our Bill of Rights, 
*' that government is or ought to be instituted for the common be- 
nefit, protection, and security of the people," " and that a majority 
of the community hath an indubitable, unalienable, and indefeisible 
right to reform, alter or abolish it." Sovereignty then resided in 
a majority of the people, not in the government, which was its 
mere agent and depositary for the lime being. All the attributes 
of sovereignty, necessary for the purposes of independent govern- 
ment, were entrusted to the public functionaries, and exercised by 
them ; but they could at any moment be resumed either wholly or 
partially, by the supreme power or majority of the people in whom 
tliey must consequently be considered as inherent and unalienable. 
Some of the attributes of sovereignty were visible in the State 
Government, and some in the Federal Government; but as the su- 
preme power, according to the principles he had laid down, did not 
reside in either, where, he would ask, did it reside? Not in a majo- 
rity of the people of all the States, collectively, for there was no 
mode prescribed, by which they could act, as a majority, in alter- 
ing or abolishing the government. On the contrary, the power of 
altering the General Government was lodged by ilie Constitution, 
in three-fourths of the States; and yet, although that power was the 
chief characteristic of sovereignty, it could not be maintained, that 
the sovereignty of the whole Union, resided in the three-fourths of 
the States. It happened, at present, that one-fourth of the States, 
contained a greater population than the remaining three-fourths; 
and to contend that the sovereign power of the nation was in the 
latter, would be to contend that it was in a minority of the people. 
Now it was certainly true, that three-fourths of the States, compris- 
ing a minority of the population of all, might change the Federal 
Constitution; but this, so far from showing that the inherent right 
of a majority was violated in our political system, furnished a con- 
clusive evidence of the fallacy of that theory, which represents the 
States, in their internal relations, as one nation, having but one so- 
vereign power, instead of twenty-four sovereign powers. If the 
States, respectively, were not sovereign, as to each other, but were 
integral parts of a nation, having a common government, the sove- 
reign power of that nation, according to the constitutional compact, 
resided in a minority, or it resided no where. But if, on the other 
hand, it were admitted, t!;at the Federal Constitution was a com- 
pact between sovereign States, the difficulty would, at once, be 
solved, and the authority vested in this arbitrary number of the 
States, would be seen to be merely a conventional arrangement for 
altering the terms of a league and not of a social compact. 

Whilst he contended, he said, tliat each State, — by which he 
meant a majority of the people of «the State, had retained its 
sovereignty entire, and that sovereignty was in its nature indivisible, 
he would freely admit, that each Stale, by virtue of voluntary en- 
gagements, had imposed certain restraints on the exerri'^e of its so- 



TT^ 



vereignty. The sovereign (jowcr of Virginia, for instance, had cre- 
ated a State Government, and vested in the Legislative, Executive 
and Judicial agents administering it, just so many powers as were 
necessary fur controlling the local and internal afi'airs of the Com- 
moiiwcallh. That same sovereign jDOwer had agreed hy compact, 
with the respective sovereign powers of the other States, to vest a 
portion of its attributes, provided every other State would vest an 
equal portion in a Genera! Government, which should exert the au- 
thority confided to it, as the common agent of all, in superintend- 
ing the external and foreign relations of the States. These two 
governments, between which were distributed the necessary powers 
appertaining to independence, constituted together, a whole govern- 
ment for the State of Virginia, and, in order to point out the res- 
traints on her sovereitrntv, it was necessarv to examine how far the 
majority of the people of the State could exercise, at pleasure, the 
power of changing this government in either of its branches. In 
the first place, it was observable that the State — b^' which, always, 
he meant a majority of the people of the State — could not rightful- 
ly establish any other than a republican form of government, which 
was guaranteed to each State by the Federal Constitution; and 
whilst it was ordinarily the rigiit of sovereignty to establish any 
kind of government whatever, the exercise of this right was restrain- 
ed by the Federal compact; and Virginia could not, if she willed 
it, without violation of her faith, transform her government into a 
monarch}^ The States erected out of the north western territory 
were liable to the additional restraint, of not being at liberty to 
change their ftuidamentai laws so as to contravene the Ordinance 
of 1787; one of the provisions of which, prohibited the introduction 
of slavery. 

Again; the State of Virginia could not change the federal branch 
of her Government, without the consent of three-fourths of the 
St'utes ; and those three-fourths might change it, except in one fea- 
ture, without her consent, and even against tlie unanimous voice of 
her people. Nay, more, as every change of the Federal Consti^ 
tution produced a corresponding change in the Slate Government, 
either enlarging or restricting its authority, three-fourths of the 
States, by amending the Federal Constitution, n)ight, in effect, al- 
ter the local branch of her Government as well as the federal branch ; 
and this too, without her consent, and even against the unanimous 
wish of her people. 

These restraints did not, however, impair the sovereignty of each 
State, in relation to the others ; and in order to see what circum- 
stances had that effect upon a State, he would refer to the law of na- 
tions, which was emphatically called " the law of sovereigns." 
Vattel, he said, laid it down, (B. I. sec. 10,) that "several sove- 
reign and independent States may unite themselves together by a 
perpetual confederacy, without ceasing to be, each individually, a 
perfect State. They will together constitute a Federal Republic ; 
their joint deliberations will not impair the sovereignty of each 
member, though they may, in certain respects, put some restraint 



on the exercise of It, in virtue of voluntary engagements. A per- 
son does not cease to be free and independent when he is obliged 
to fulfil engagements which he has voluntarily contracted." In 
the following section, it was said, " but a people that has passed 
nnder the dominion of another, is no longer a State, and can no 
longer avail itself directly of the law of nations." Again, (B. 
n., sec. 172,) "Equal treaties are those in which the'coniract- 
Jng parties promise the same thing, or things, that are equiva- 
lent, or finally, that are equitably proportioned, so that the con- 
dition of the parties is equal"— and, (in section 174,) "Equal 
alliances, those in which equal treats with equal, making no dif- 
ference in the dignity of the contracting parties." In the same 
author, (B. II. section 175,) it was said, "unequal alliances 
are subdivided into two kinds; they either impair the sovereign- 
ty or they do not. The sovereignty subsists entire and unimpair- 
ed when none of its constituent rights are transferred to the siipe- 
nor ally, or rendered, as to the exertion of them, dependent on his 
will." " But if either of the contracting parties engages not to 
make war against any one whatsoever without the co'nsent or per- 
mission of an ally, who on his side does not make the same promise, 
the fornier contracts an unequal alliance, with diminution of sove- 
reignty." From these passages, he said, some rules, which had an 
important bearing on the subject under consideration, might be de- 
duced. It might be regarded as a maxim, that the sovereignty of a 
State was unimpaired by any engagements, not destructive of its 
separate organization, which had been entered into, voluntarily and 
nithout force or constraint, and it was unnecessary to add, that the 
reciprocal obligations of the States, were purely the result of choice, 
and not necessity. 

Again ; it seemed to be a clear rule that sovereignty was not im- 
paired by an equal alliance, whatever might be its diaracter in other 
respects ; and if ever there existed an equal alliance, that which 
resulted from the Federal Constitution was such. The contracting 
parties treated with each other as equals, acknowledging no difier- 
ence in dignity, and "promised the same things" for the same 
equivalents. Each State vested some of its powers, in a General 
Government, and every other State made an equal contribution. 
Each State agreed, in a prescribed mode, to allow the General Go- 
vernment, to act directly on its citizens — not to make war, peace 
and treaties, &,c. without the concurrence of its associates — and 
even in certain cases, before referred to, to submit to some restraints 
in the exercise of its sovereign power to change its form of govern- 
nieiit — but every other State agreed to make precisely the same 
concessions. The only instances in which there was an apparent 
inequality in the terms of the compact, where the provisions which 
apportioned representatives, direct taxes, and electors of President 
and Vice President, among the States, according to population, in- 
stead of allowing an equal weight to each. But when the intimate 
nature of the Union, which created a practical government, was 
considered, this would be found to be a perfectly just arrangement. 
It brought no one State under the dominion of another, and ad- 



21 



niitted no superiority in eiiher. If the lari^er States enjoyed a 
more numerous representation and a greater electoral suftVa-e thev 
! also paid a greater share of the taxes and recognized the equality 
o. the smaller btates in the Senate. It was, in short, precisely that 
equitable apportionment spoken of by Vattel, which made the con- 
dition of the parties equal. K further authority on this point were 
vyantiug u m.ght be found in Montesquieu, who, after describing- a 
confederate republic" as " a Convention by which several smaller 
States agree to become members of a larger one;" and recitin- 
as one of the advantages of this form of Government, that " the 
confederacy may be dissolved and tiie confederates preserve their 
sovereignty," mentions, (1 vol. p. 183,) as the best model of such 
a federal republic, the Lycian confederacy, which consisted of twen- 
ty-three tovvns or republics, unequa/hj represented in -the common 
council —those of the largest class being entitled to three votes 
some to two votes, and others to one. ' 

Another rule was, that the sovereignty of a State was not impair- 
ed, even where the alliance was unequal, unless some of its attri- 
butes were "transferred to a superior ally, or rendered as to the ex- 
ertion of them dependent on his will." Those, he said, who denied 
the entire sovereignty of the States, seemed to regard the Federal 
Government as an extraneous power, operating on a State against its 
will-and the President in his Proclamation, asked-" how then 
can that State be said to be sovereign and independent, whose citi- 
zens owe obedience to laws not made by it.?"— In repiv, it mi-htbe 
said, that although a law of the Federal Goven.nen .^'rnotmde 
.mmed.ate y by the State, yet as it could only be made in pursuance 
and by authority of an instrument to which the State had given its 
voluntary assent, the law was thus derivatively clothed with the 
sanction of the State. But the truth was, that every State parti - 
pated m the making of such law. The Federal Governme^it was 
administered by the joint will and deliberations of the parties IZ 
e act of all was the act of each. Virginia, for instance,'had agreed 
that Congress should have the power of taxa.ion; and when a di- 
rect tax was aid, although her representatives m ght have unani- 
mously voted against it, she could not theoretically, be said to be 
taxed against her consent. Upon the same ground^, too, it nigh 
be maintained, m those cases to which he ha.I before rderrid, where 
three-fourths of the States could change the form of rov^nim^ 

rz7j'' 'r ";" fr/ ^'^ ^''^^^^' ''^^ - -^'' state v-u-riS 

.n he councils which led to the change, its assent to such change 
was cons ructively obtained. This, he said, was the great prinfi! 
pie on which the American Revolution was founded. Our ances- 
tors threw off their allegiance to the British crown, because the co- 
lonies were taxed without their consent. Thev denied the right of 

Todt^H d u!r .'"'"'n ^'"r ^'"^ ''' "° -presentatives i^ lull 
body. Had they been allowed to sit in Parliament, and vote through 

min";;;'";"? ';"',''-'""^^' '''y "^'-^''^ ^''^-^y^ have voted "^a 
Hnn^ ^^ negatively, it was manifest, from the resolutions, peti- 
fons, and declarations of right, of that day, that they would no C 



e 



22 

ger have considered themselves aggrieved, or taxed without their 

assent. 

It was a very common argument, and urged in the Proclamation, 
that as the power to make war, peace, treaties, and to levy taxes, 
appertained to sovereignty, and were surrendered by the States to 
the Federal Government, their separate sovereignty was thereby im- 
paired. But those powers did not constitute sovereignty itself. 
They were merely some of those visible, active attributes of it, which 
were always exercised by the government. If Virginia were an iso- 
lated sovereign nation, those same powers would, doubtless, be vest- 
ed in her government; although the sovereign power would, in that 
case, confessedly be in the people themselves. Even under existing 
circumstances, they were, in fact, lodged in one branch of her own 
government — the federal branch — and as she participated through 
her immediate agents, in the administration of that government, she 
might be regarded, so far from having surrendered ihose powers, as 
being in the actual enjoyment of them, conjointly with otl)crs, over 
whose rights, of a similar character, she exerted an equal, reciprocal 
control. It was worthy, moreover, of remark, that under the con- 
federation, when the States were unquestionably sovereign, all of 
these powers, except that of taxation, were granted to Congress, and 
prohibited to the States, to nearly tlie same extent as now, by the 
Federal Constitution— the chief difference being in the mode of 
exercising them. 

Another argument, he said, which had been advanced by the 
Proclamation against the sovereignty of the Slates, was, that they 
had ceded to t1)e United States the riglu to punish treason — that 
"treason is an offence against sovereignty and sovereignty must 
reside with the power to punish it." He denied that treason was an 
offence against sovereignty, but insisted that it was an offence against 
government. The maxim had originated where sovereignty and 
government, as in England, were held to be convejtible terms. If 
it were true and proved any thing, it would prove that sovereignty, 
under our system, resided in the government. And not only so, 
but it would Drove that sovereignty was divided between two go- 
vernments, foV the states had the right to punish treason, as well as 
the United States— both of which conclusions were erroneous, for 
sovereignty was indivisible, and resided in the people. 

Much stress had been laid on those features of the Federal Go- 
vernment which wore the aspect of nationality.— It was said in the 
Proclamation, that " We are one people in the choice of the Pre- 
sident and Vice President"— that " the electors of a majority of 
States may have given their votes for one candidate and yet another 
may be chosen. The people, then, and not the States, are repre- 
sented in the Executive branch." It was true that a minority ot 
the states were entitled from their greater population to a majority 
of the electors, and could consequently choose President and Vice 
President. It happened at this time that one-fourth of the States 
had a majority of the electoral votes and of course a decisive voice 
in that election. But on the other hand, that same fourth ol the 



23 

Stales, or six States, wliicli had a majority of the electoral votes 
had also a majority of the people of the United States. Upon the 
general ticket system which was now prevalent, it might happen 
that tiie ticket of electors, favorable to one candidate and having 
power to elect him, might be carried by bare majorities of the peo- 
ple in those six States, while the almost ecjuivalent minorities, and 
the whole population of the other States, which together would 
amount to within a fraction of three-fourths of all the people of the 
United States, might have voted in favor of the unsuccessful candi- 
date. If, then, the fact that a President might be chosen against 
the wishes of a majority of the States, proved that the States were 
not "represented in the Executive branch," it must likewise be ad- 
milted, that the fact that a President might be elected against the 
will of a majority of tlie people, proved that ihe people were not re- 
presented in the Executive branch. 

Another feature mentioned by the Proclamation as indicating . 
nationality, Was, that the Representatives in Congress "are all Re- 
presentatives of the United States, not Representatives of the parti- 
cular Slate from which thev come." He said, he denied that the 
Virginia Delegation represented the people of other States, any 
more than Senators represented other States. The object in view, 
in the organization of the House of Representatives, was to give to 
each Stale a v/eight proportioned to its population ; and consistently 
with that object, no oilier convenient, practical mode could be de- 
vised, than that of voting promiscuously. Admitting the nation- 
ality of this feature, it was counterbalanced by the federative prin- 
ciple on which the Senate was based, and which was so cautiously 
guarded by the constitution that it could not be changed, without 
the express consent of every State. 

An argument in favor of consolidation, was sometimes founded 
on the direct operation of the General Government on the citizens 
of the Slates; when, if it were a confederacy, it was said, it ought 
to operate on the Slates, in their collective capacity ; but there was 
neither precedent nor principle to support the idea. There was 
one common fallacy pervading all illustrations, which went to de- 
duce the character of the parties to the constitutional compact from 
the administrative operation of the government. Whether the par- 
ties were sovereign or not, was to be testeu by history and the 
principles he had been examining. If they were sovereign, they 
might by compact with each other, establish a common governmeni, 
exhibiting every diversity of form, even the traits of democracy, 
without thereby impairing their sovereignty ; and hence it was ob- 
viously an inversion of all correct reasoning, to argue from the 
mode of action of the government, that the parties either were or 
were not sovereign. 

Having considered the character of the Federal Constitution, 
and of the Stales who are parties to it, he said, it was his intenlion 
next to inquire, by what means and under what circumstances this 
compact might be dissolved ; or in other words, how and when a 
Stat e might secede. He said he would t;iadlv have avoided this 



24 I 

subject of secession, and wished to discountenance every thing that 
could create " a susjoicion, that the Union would under any circum- 
stances be abandoned;" but, unhappily, there was too much reason 
to fear that we could no longer shun this distracting question,^ and 
were about to have it practically forced U[)on us. The remedv of 
South Carolina, thus far, was Nullijication, and she had declared 
that it v\as a peaceful remedy. He believed the people of that 
State, had embarked in it under a conviction that it was a pacific 
measure. But if it should fail, as fiil it must, and more especially 
should it lead to any, the slightest, collision between the authorities 
of that Stale and the Federal Government, could it be doubted, 
tliat the people of Carolina, whatever their views in the first in- 
stance, would then be prepared for every extremity. One of their 
popular orators, in a recent harangue, while lamenting the apathy 
with which the neighboring States in the South looked on at the 
contest, seemed to rely with prophetic assurance on the effect of any 
efl'ort on the part of Congress to enforce the laws, and pointed to 
the consequences of the Boston Port Bill, in arousing and uniting 
our forefathers againsi the tyranny of England. In fact, Carolina 
might be said to have already seceded, conditionally — having de- 
clared that upon the slightest attempt at coercion, she would consi- 
der herself as seceded ; and, as was the case in a conditional decla- 
ration of war, as soon as the contingency contemplated should 
happen, her withdrawal tVom the Union would be, ipso facto, con- 
summated. It was time, tlierefore, to determine the true character 
of this right. It liad been said in the course of that debate, with 
much plausibility, that settle it as we might, neither posterity nor 
contemporaries would abide by our construction, unless it should 
coincide with their interests. But he could not close his eyes to 
the immense importance of giving an early and true direction to 
the public mind. When opinion had become fixed in regard to a 
fundamental principle, and something like unanimity brought about 
by long reflection, it was comparatively easy, when the proper oc- 
casion should arrive, to reduce it to practice without that embar- 
rassment or collision which never failed to attend new and un- 
thought-of exigencies. Do what we might for its suppression, it 
would be discussed and would be settled by public opinion through- 
out the Union. 

He had, he said, endeavored to show that the States were sove- 
reign at the formation of the Union, and that they were sovereign 
under it. If that were true, it followed, as a necessary consequence, 
that the Federal Constitution was a compact between independent 
States or nations, and the rights and obligations which resulted from 
it to the parties, were to be ascertained by the general principles of 
the law of nations. That code was the "law of nature applied to 
nations," and constituted, according to Vattel, " that system of right 
and justice which ought to prevail between nations or sovereign 
States." No one, who admitted the sovereignty of the States, 
would deny that the relations subsisting between the.n, were to be 
determined by the rules laid down in approved treatises on national 



25 

law. The Federal compact was not an ordinary treaty, league, or 
alliance, but was an intimate constitutional union, establishing a 
common government for certain general purposes between the par- 
ties. Tlie closeness of the connexion and the mutual dependence of 
the destinies of the one upon the other, gave rise to some obligations 
which did not exist in the case of a mere treaty respecting transient 
interests. A simple conventional arrangement, embracing a few 
points of intercourse between States, might be broken without seri- 
ous consequences; but the n)ore intimate the tie, the more disas- 
trously would its severence afl'ect the parties ; who for that re^on 
were under the stronger obligations to exercise patience and forbc ir- 
ance under real or supposed wrongs — to exhaust all pacific means 
of redress, and to appeal from the compact only when their happi- 
ness imperiously demanded it. He was willing, however, to consi- 
der the Union as resting simply on the principles of a treaty of alli- 
ar)ce; and when those principles came to be examined, he felt assured 
it would appear that a more safe and durable basis for our Re- 
publican edifice, could not be found. Much misapprehension seemed 
to prevail in regard to the obligations of a treaty. Some had 
declared that a sovereign State iiad a right, at any time, at her own 
pleasure, to withdraw from an alliance founded on a treaty, and up- 
on this assumption rested, as he understood, the doctrine of peaceable 
secession — the fdlacy of which, in the sense in which it was urged, 
might be easily exposed. He regretted extremely that the Presi- 
dent, in his Proclamation, had seen fit to deny, in any degree, the 
absolute sovereignty of the Stales; because, admitting it in its ut- 
most latitude, and putting the Federal Compact on the footing of a 
treaty of alliance, he might still have arrived at the legitimate con- 
clusion, that a State had no right to terminate that alliance, when- 
ever she thouglit proper, without good and sufficient cause. The 
intimacy of the alliance, as he had already remarked, did not change 
the principle, but merely added to the strength of the obligation to 
observe it scrupulously, and to abandon it only for injuries and vio- 
lations of greater magnitude. 

It was laid down in Vattel, (B. 11. sec. 164 — 200,) that "as the 
engagements of a treaty imposed on the one hand a perfect obliga- 
tion, they produced on the other n jyerfect ri<rh(. The breach of a 
treaty is, therefore, a violation of the perfect right of the party with 
whom we have contracted." Again; it is said by the same writer, 
(B. HI. sec. 26,) that "in order to determine what is to be consi- 
dered an injury, we must be acquainted with a nation's rights, pro- 
perly so called — that is to say, her perfect rights. Whatever strikes 
at these rights, is an injury and a just cause of war." In short, it 
was a settled point in the law of nations, that when a compact, whe- 
ther known by the name of treaty, alliance, league, confederation 
or union, was formed between sovereigns, there resulted to each 
party a perfect right to compel the other to perform its stipulations. 
Another rule, equally unquestionable was, that the violation of a 
perfect right, or in other words, a breach of the compact, furnished 
good cause of war to the party injured. He would ask, whethei-, 



24 

subject of secession, and wislietl to discountenance every thing that 
could create " a susjolcion, that the Union would under any circum- 
stances be abandoned;" but, unhappily, there was too much reason 
to fear that we could no longer shun this distracting question,^ and 
were about to have it practically forced upon us. The remed ■/ of 
South Carolina, thus far, was Nullijication, and she had declared 
that it v\as a peaceful remedy. He believed the people of that! 
State, had embarked in it under a conviction that it was a pacific 
measure. But if it should fail, as fail it must, and more especially 
should it lead to any, the slightest, collision between the authorities 
of that Stale and the Federal Government, could it be doubted, 
that the people of Carolina, whatever their views in the first in- 
stance, would then be prepared for every extremity. One of their 
popular orators, in a recent harangue, while lamenting the apathy 
with which the neighboring States in the South looked on at the 
contest, seemed to rely with prophetic assurance on the effect of any 
efibrt on the part of Congress to enforce the laws, and pointed to 
the consequences of the Boston Port Bill, in arousing and uniting 
our forefathers againsi the tyranny of England. In fact, Carolina 
might be said to have already seceded, conditionally — having de- 
clared that upon the slightest attempt at coercion, she would consi- 
der herself as seceded; and, as was the case in a conditional decla- 
ration of war, as soon as the contingency contemplated should 
happen, her withdrawal from the Union would be, ipso facto, con- 
summated. It was time, therefore, to determine the true character 
of this right. It had been said in the course of that debate, with 
much plausibility, that settle it as we might, neither posterity nor 
contemporaries would abide by our construction, unless it should 
coincide with their interests. But he could not close his eyes to 
the immense im})ortance of giving an early and true direction to 
the public mind. When opinion had become fixed in regard to a 
fundamental principle, and something like unanimity brought about 
by long reflection, it was comparatively easy, when the proper oc- 
casion should arrive, to reduce it to practice without that embar- 
rassment or collision which never failed to attend new and un- 
thought-of exigencies. Do what we might for its suppression, it 
would be discussed and would be settled by public opinion through- 
out the Union. 

He had, he said, endeavored to show that the States were sove- 
reign at the formation of the Union, and that they were sovereign 
under it. If that were true, it followed, as a necessary consequence, 
that the Federal Constitution was a compact between independent 
States or nations, and the richts and obligations which resulted from 
it to the parties, were to be ascertained by the general principles of 
the law of nations. That code was the "law of nature applied to 
nations," and constituted, according to Vattel, " that system of right 
and justice which ought to prevail between nations or sovereign 
States." No one, who admitted the sovereignty of the States, 
would deny that the relations subsisting between the.n, were to be 
determined by the rules laid down in approved treatises onjiational_ 



25 

law. The Federal compact was not an ordinary treaty, league, or 
alliance, but was an intimate constitutional union, establishing a 
common government for certain general purposes between the par- 
ties. The closeness of the connexion and the mutual dependence of 
the destinies of the one upon the other, gave rise to some obligations 
which did not exist in the case of a mere treaty respecting transient 
interests. A simple conventional arrangement, embracing a few 
points of intercourse between States, might be broken without seri- 
ous consequences; but the more intimate the tie, the more disas- 
trously would its severence affect the parties ; who for that re^on 
were under the stronger obligations to exercise patience and forbf ;r- 
ance inider real or supposed wrongs — to exhaust all pacific means 
of redress, and to appeal from the compact only when their happi- 
ness imperiously demanded it. He was willing, however, to consi- 
der the Union as resting simply on the principles of a treaty of alli- 
ance; and when those principles came to be examined, he felt assured 
it would appear that a more safe and durable basis for our Re- 
publican edifice, could not be found. Much misapprehension seemed 
to prevail in regard to the obligations of a treaty. Some had 
declared that a sovereign State had a right, at any time, at her own 
pleasure, to withdraw from an alliance founded on a treaty, and up- 
on this assumption rested, as he understood, the doctr'me of peaceable 
secession — the fillacy of which, in the sense in which it was urged, 
might be easily exposed. He regretted extremely that the Presi- 
dent, in his Proclamation, had seen fit to deny, in any degree, the 
absolute sovereignty of the States; because, admitting it in its ut- 
most latitude, and putting the Federal Compact on the footing of a 
treaty of alliance, he might still have arrived at the legitimate con- 
clusion, that a State had no right to terminate that alliance, when- 
ever she thought proper, without good and sufficient cause. The 
intimacy of the alliance, as he had already remarked, did not change 
the principle, but merely added to the strength of the obligation to 
observe it scrupulously, and to abandon it only for injuries and vio- 
lations of greater magnitude. 

It was laid down in Vattel, (B. H. sec. 164 — 200,) that "as the 
engagements of a treaty imposed on the one hand a perfect obliga- 
tion, they produced on the other di perfect riirht. The breach of a 
treaty is, therelbre, a violation of the perfect right of the party with 
whom we have contracted." Again; it is said by the same writer, 
(B. in. sec. 26,) that "in order to determine what is to be consi- 
dered an injury, we must be acquainted with a nation's rights, pro- 
perly so called — that is to say, her perfect rights. Whatever strikes 
at these rights, is an injury and a just cause of war." In short, it 
was a settled point in the law of nations, that when a compact, whe- 
ther known by the name of treaty, alliance, league, confederation 
or union, was formed between sovereigns, there resulted to each 
parly a perfect right to compel the other to perform its stipulations. 
Another rule, equall}' unquestionable was, that the violation of a 
perfect right, or in other words, a breach of the compact, furnished 
good cause of war to the party injured. He would ask, whether, 



28 

be brought within the jurisdiction of the Supreme Court, that tribu- 
nal, which was intended as an additional safeguard of the rights of 
the citizen against unconstitutional measures, ought first to be 
appealed to. Although it was true that the Supreme Court was 
not an arbiter between the States in questions aftecting their rights 
itnder the compact, yet, in such cases as might be brought within its 
jurisdiction, it had ample power to aflbrd protection to any citi- 
zen, and of course, to all the citizens of a State, which was as much 
as could be desired. As an amendment or alteration of the Con- 
stitution, in the mode provided in that instrument, offered another 
means of redress, recourse should, in like manner be had, or at 
least attempted, to that method of correction. Until these chan- 
nels of relief had been closed, it could not be said that all the De- 
partments of the Government had concurred in the alleged usurpa- 
tion, or that a withdrawal from the Union was the only remedy left ; 
and hence the duty of a State to make these reasonable efforts, be- 
fore proceeding to extremities, amounted, in general, to a perfect 
obligation. 

A State could not, he said, secede without injury to the co-states, 
until she had first proposed equitable terms of separation, in regard 
to the public property within her limit ; and without going into de- 
tails, he would merely say, by way of illustration, that a State would 
be bound to reimburse the United States for expenditures on forti- 
fications and other public works — due allowance being made for 
the quota contributed by the State itself to the common fund. In 
the case of Louisiana, which was purchased at the price of fifteen 
millions of dollars, for the purpose of being erected into a member 
of the Union, it would be but just that this sum should be refunded 
to the United States. Similar conditions might properly be imposed 
on States, within whose limits, a portion of the public lands were 
situated. 

Under no circumstances would a State be entitled to secede un- 
til she had, by fresh negotiations and treaty, settled on a satisfacto- 
ry basis, or ofiered to do so, the future relations to subsist between 
her and the co-states. In determining the character of these rela- 
tions, a field would be opened for the exercise of another class of 
rights on the part of the remaining States of the Union, the general 
tenor of which would be explained by a passage from Vattel, (B. 
II. sec. 180) — " If a weak State attempts, without necessity, to 
erect a fortress which she is incapable of defending, in a place 
where it might become very dangerous to her neighbor, if ever it 
should fall into the hands of a powerful enemy, that neighbor may 
oppose the construction of the fortress." In the same manner, he 
may oppose the forming of a highway that opens to an enemy an 
entrance into his State. It was upon this principle that the Uni- 
ted States, during the administration of Mr. Monroe, asserted a 
right to interfere in the fate of Cuba; and upon the same ground 
of self-preservation and security they might, in anticipation of a dis- 
memberment of the Union, exact from Louisiana, for instance, such 
conditions, although unequal, as might be necessary to prevent this 
strong hold from falling into the hands of a foreign power. 



29 

Viewing the position of South Carolina, in connexion with the 
principles he had laid down, he did not think she had a right to se- 
cede. He admitted, that there had been a perversion of the spirit 
and intent of the Constitution, but it was not " stampt with a final 
consideration and deliberate adherence," which was admitted to be 
necessary by the Report of '99. On the contrary, there never was 
a period, at which the abandonment of the obnoxious measure, had 
seemed so probable as now. She had not resorted to all the means 
of redress which were open to her by the forms of the Constitution ; 
nor had she proposed any terms or entered into any negotiations as 
to the future intercourse between her and the co-states, in the event 
of her seceding. She had shown less respect to the other States, 
and a less conciliatory spirit, than did North (Carolina, under the 
confederation, when her convention, having decided not to ratify at 
that time the Federal Constitution, ad(5pted a resolution — "That 
it be recommended to the Legi>lature of this State, that whenever 
Congress shall pass a law for collecting an impost in the States rati- 
fying the Constitution, this State enact a law for collecting a simi- 
lar impost on goods imported into this State, and appropriate the 
money arising tlierefrom to the use of Congress." South Caroli- 
na on the contrary, had not only refused to pay any part of the im- 
post laid by the Congress, but had made no provision for laying 
any impost herself in aid of the General Government, and had in 
efl'ect declared her ports free. But whilst he thought South Caro- 
lina could not, under existing circumstances, withdraw from the 
Union, without doing injustice to the other States, (many of whom 
had not concurred in the infraction,) for which they might de- 
mand reparation, lie was, nevertheless, no advocate of force. He 
was convinced that the Union could never be preserved by the com- 
pulsion of its members. When a State liad resolved on secession, 
even without cause, whilst tlie right might be denied, there was but 
little advantage in endeavoring, by force, to prevent the act. Indem- 
nity and reparation might be exacted — but no human power could 
restore the broken altars, and heal the bleeding members of the 
Union. Should a State attempt to secede without sufficient cause, 
the alternative would be presented to the other States, either to 
compel an adhesion, which could only be done according to the 
rules of war, or to waive that right and permit the State to secede 
peaceably. The latter alternative he would always choose, unless 
some unpardonable obliquity in the course of the State should rea- 
der forbearance impossible. 

But, whilst he was opposed, from considerations both of policy 
and feeling, under almost all conceivable circumstances to the em- 
ployment of force against a State, he would not deny the right of 
the co-states, under proper circumstances, to use coercion, nor did 
he even comprehend the meaning of a peaceable right of secession. 
If it meant a right to dissolve the compact at will and pleasure, it 
was clearly incompatible with the principles he had laid down. If 
it meant that there were cases in which the one party should allow 
the other peaceably to secede, it was a misapplication of terms, in 
which a mere feature of policy was made the characteristic of a 



30 

right. Secession was an act. It might or miglit not be founded 
in right. Ii might be attended with peace or attended with force, 
and therefore called a peaceable or forcible act, but not a peaceable 
or forcible right. Some had contended that the act might be peace- 
able, though war should follow. But, as he knew no particular for- 
mality which constituted secession, he looked upon it as one contin- 
ued act, not complete until all opposing diiiiculties had been re- 
moved. 

On the other hand, he did not put secession on the footing of re- 
bellion or revolution. The latter he understood to be resistance by 
a fractional part of one integral, consolidated body politic, against 
the established authorities, which was punishable according to the 
municipal laws respecting treason. Tiie former was the act, whether 
right or wrong, of a sovereign, which, whatever restraints may liave 
existed during the continuance of the compact, was entitled upon 
the renunciation of that compact, to be treated as a sovereign, and 
to be punished, if punished at all, according to the usages of war, 
under the law of nations. It was a fallacy to say, that if a State 
had a right to secede at all, she iiad a right to secede even 
without cause, for he had shown that there must be a good 
and sufficient cause before the right accrued : but it was true, 
as a necessary consequence of tlie sovereignty of the States, 
that when a State had resolved to secede, even without cause, 
she ivas entitled to be treated by ihe co-stntes as a sovereign power, 
subject to war, but not to the pains and penalties of treason. In 
the case of revolution, the established authorities must decide 
whether the couiplaint of the rebels was just, and whether conces- 
sions should be made, or whether the insurrection should be sup- 
pressed. In the case of secession, the like judgment must be 
passed by the one party, in reference to the other party abrogating 
the compact otherwise than by mutual consent. Tiie circumstances 
which would justify the one act would justify the other, being in 
either case, a perversion of the powers vested in the government, or 
a usurpation of powers not vested, to the intolerable oppression 
and injury of the parties. The only distinction of any practical 
value was, in reference to the mode of settling the difference or con- 
ducting the contest growing out of it. If it were held to be revolu- 
tion, the citizens acting in obedience to the Slate authorities and in 
defiance of the Federal Government, would be liable to be hung for 
treason. If it were secession as he had defined it, the State would 
be attacked as one body and treated as an enemy under the law of 
nations. The power of the government was perhaps as strong on 
the latter principle as on the former ; and as to the maintenance of 
the public authorities, it was a matter of indifference which was es- 
tablished as the true doctrine ; but in reference to the States, it 
\i-A% an object of some importance that a State, if ever reduced to 
the extremity of resisting, should enjoy the right to shelter her citi- 
zens under her own flag and fight the battle of freedom according 
to the liberal usages of war. This was the only point of diflerence 
worth contending for, and. but for this gentlemen might call it re- 
volution or whatever else they pleased. 



31 

He said, he would now proceed to consider how far nullification ^ 
as a constitutional remedy, was compatible with a political system, 
founded on the principles he had been contending for. He under- 
stood the doctrine of nullification to be the assertion of a right on 
the part of a State continuing- to be a member of the Union and 
subject to the Federal Constitution, to ainiul and make void within 
its territories, a law of Congress, believed by such State to be un- 
constitutional, attended by a corresponding obligation on Congress 
to submit the matter to a General Convention of the States, and in 
the meantime to suspend its execution. The authors of this doc- 
trine could find no principle of our government, or provision of the 
Constitution which gave to a State the right to put a veto or nega- 
tive on a law of the General Government. The obvious effect 
would be to place a majority of the States under the control of a 
minority — to subject twenty-three States to the will of a single 
State, for witi)out unanimity no law could be enforced. In fact to 
suspend the execution of many laws would virtually be equivalent 
to a repeal of them. Had Massachusetts, for instance, raised the 
embargo in the port of Boston, the whole volume of interdicted 
commerce would have been poured into that city, and a measure 
deemed so important by the government, would have been totally 
defeated. Should Charleston be declared a free port the revenue 
laws would, in effect, be abrogated, for no merchant would import 
goods into any other place where he would have to pay an average 
duty of thirty-seven and a half per cent, when he might bring them 
into the countrv, through Charleston, duty free. That could not 
be considered a governn)ent which had not power to act on its con- 
stituents, whether they were individuals or Slates, and to suppose 
tiiat the Constitution had given to a State the right to negative a 
law of Congress, would be to suppose the existence of a right which 
rendered all the powers of the government wholly nugator}'. 

The other feature of the remedy which made the veto effectual 
until three-fourths of the States in Convention, have overruled the 
interpretation put on the Constitution by the nullifying State, was 
also without foundation in the most latitudinous construction of 
that instrument. In support of the idea, resort was had to the most 
constrained analogies. It liad been said that the concurrence of 
three-fourths of the States was necessary in amending the Consti- 
tution, and as an alteration or amendment, could, in effect, b» made 
by interpretation, therefore the concurrence of three-fourths was re- 
quired for interpreting that instrument. But it should be remem- 
bered that a bare majority was the inherent principle of a republican 
government, and applicable in all cases not specially provided for — 
that the majority of three-fourths was wholly arbitrary, and required 
by the Constitution only in cases of amendment — that there was no 
such provision in regard to its interpretation, and hence the power 
of interpretation under the Constitution other than in the last re- 
sort, must reside, according to the principles of our government, in 
j the hands of a majority of the States, or their federal agents. Be- 
lieving, as he did, that a majority of tlie States would interpret the 



32 

Constitution favorably to the Tariff, and that such decision, if not 
absolutely obligatory, would carry with it a strong moral force, he 
was opposed to going into a General Convention on the subject. 
Even if the concurrence of three-fourths were admitted to be neces- 
sary for interpretation, and the anti-tarift' States numbered more 
than one-fourth, the Convention would result in nothing beneficial. 
The tarifi" Slates would assert that the Constitution already confer- 
red the disputed power on Congress, and three-fourths of tlie Slates 
must concur in taking it away, while the anti-tarifT States, denying 
the existence of the power, would call upon the three-fourths of 
the States to assert it. Upon the decision of this preliminary ques- 
tion the result would depend, and as neither would yield the point, 
it was easy to foresee that the Southern States, if not bound hand 
and foot by a bare majority, would quit the Convention under dis- 
appointment and increased excitement. There was at least as much 
reason to expect relief from the Government, as from the Conven- 
tion, and without the danger attending the latter resort, of a final 
adverse construction by the highest tribunal provided by the Con- 
stitution. Such were a kw of the errors and evils of this most 
extraordinary doctrine. 

Nullification was said to be a remedy recognized and affirmed by 
the Resolutions and the Report of the General Assembly of Virginia 
in '98 and 99 ; but after the most careful and anxious examination 
of those documents, he had satisfied himself that nidlification, as a 
constitutional remedy, was not contemplated by them, nor was it a 
legitimate inference from the principles imbodied in them. The 
doctrine was usually traced to the latter part of the third Resolu- 
tion of '98, which read thus : "and that, in case of a deliberate, pal- 
pable, and dangerous exercise of other powers, not granted by the 
said compact, the States, who are parties thereto, have the right, 
and are in duty bound, to interpose for arresting the progress of 
the evil, and for maintaining within their respective limits, the au- 
thorities, rights and liberties appertaining to tiiem." The right of 
the States to " interpose" in cases of dangerous infractions of the 
compact, was here asserted in the broadest terms. The difficulty, 
of the present day, consisted in ascertaining what mode of interpo- 
sition was contemplated by the authors of the resolution. South 
Carolina contended that nulUfication was one kind of interposition 
known to the Constitution. Fortunately, he said, the Report of 
'99, in combatting the objections of other States to the Resolutions, 
bad made an express enumeration of those means of interposition 
which came within the purview of tl)e Constitution. It was there 
laid down, that the States had a right through their ordinary legis- 
latures, to declare an act of Congress to be unconstitutional, and 
to communicate the declaration to ilie other States, inviting them to 
concur in a like declaration. That they " might have made a 
direct representation to Congress, with a view to obtaining a re- 
scinding of the two offensive acts ; or they might have represented 
to their respective Senators in Congress, their wish that two-thirds 
thereof would propose an explanatory amendment to the Constitu- 



33 

lion ; or two-thirds of themselves, if such had been their option, 
might, by an application to Congress, have obtained a Convention 
for the same object." It was said, that these several means "were 
all constitutionally open for consideration." NuHification was not 
mentioned as one of the constitutional means. A State had the 
right, unrler the Constitution, to declare a law unconstitutional, but 
not to make it null and void. In the language of the Report of 
'99, "the declarations in such cases, are expressions of opinions, 
unaccompanied with any other efl'ect than what they may produce 
on opinion, by eliciting reflection." So careful were the authors of 
the resolutions of '98, in guarding against the impression, that it 
was intended to make the Alien and Sedition laws void, instead of 
merely declaring them so, that they struck from ilie 7th resolution, 
the words declaring those acts to be " not law, but utterly null, 
void, and of no force or effect." It was very evident, he thought, 
that the Assembly of '98, had no idea of resorting, at that time, 
for the then existing grievances, to any other than the pacific means 
already mentioned. The 7th resolution expressed a confidence, 
that the necessary' and proper measures would be taken by each 
State, " for co-operating with this State in maintaining, unimpaired, 
the authorities, rights and liberties reserved to the States respectively, 
or to the people." Mr. John Taylor, who brought forward the reso- 
lutions, while defending the advocates of them, from the charge of 
meditating " an unconstitutional resort to arms," said, in the course 
of the debate, that " they had pursued a system which was onl\' an 
appeal to public opinion, because that appeal was warranted by the 
Constitution and by principle ; and, ."^gain, he remarked, " that the 
plan proposed b3' the resolutions would not eventuate in war, but 
might in a Convention. He did not admit or conteniplate that a 
Convention would be called." 

It was said, however, that if the struggle of '98 and '99 amounted 
to nothing more than an appeal to public opinion, through a legis- 
lative declaration, of the unconstitutionality of certain acts of Con- 
gress, that its importance had been greatly exaggerated, inasmuch 
as there never could have been a doubt of the right of the State 
legislatures to impugn in this mode the acts of the Federal Govern- 
ment. In reply to tliis, he would remark, that it was an undoubted 
historical truth, that, whatever might have been the abstract mean- 
ing of that Assembly, they had in fact resorted to no other remedy 
than a legislative declaration ; and of the tremendous efficacy of a 
bold and timely appeal to public opinion in that form, the over- 
throw of Federalism and the triumphant introduction of the Re- 
publican Party into power, afforded a memorable proof. It was one 
of the consequences of that victory, that the right of the State legis- 
latures to declare an act of Congress unconstitutional, was now no 
longer questioned. The time had been when the matter was viewed 
in a different light. The responses of most of the States to the re- 
solutions of '98, were very general in their terms of condemnation; 
but it was plain that they meant to deny the right of the Legisla- 
ture to pronounce upon the constitutionality of a law of Congress. 
5 



34 

The Legislature of the little State of Rhode Island and Providence 
Plantations, which, from being the last State to coine into the 
Union, seemed to have become the most fearful of being separated 
from it, declared in their response that they did not feel themselves 
authorized, "in ihe'iv public capacity, to consider and decide on the 
constitutionality of the Sedition and Alien Laws," but " that in 
their jjrivate opinions, these laws were within the powers delegated 
to Congress." Indeed, the opposition of the Federal party in the 
Assembly of '98 was founded on this precise doctrine, and the re- 
solution offered by that party as a substitute, contained this single 
ground of defence, " that as it is established by the Constitution of 
the United States, that the people thereof have a right to assemble 
peaceably and to petition tlie government for a redress of grievan- 
ces, it therefore appears properly to belong to the people themselves 
to petition, &ic. and it should be left to ihem," Sic. 

Tiiere was, said 2\]r. B. an ofticial act of the Assembly of '98, 
which tended to show that the right of making a free declaration of 
opinions, either in a public or private capacity, against acts of Con- 
gress or otherwise, was contested, not by resolutions only, but, as 
was apprehended, in practice. A few days after the adoption of 
the celebrated resolutions, an act was passed, and which, he said, 
still stands unrepealed on our statute book, making it a misdemea- 
nor in any person, to arrest or proscecute any member " for or on 
account of any words spoken or written, any proposition made, or 
proceedings had, in the said Senate or House of Delegates;" and 
authorizing the judges, upon application, to liberate by habeas corpus, 
any member arrested or imprisoned on such account. He had of- 
ten heard it said, that this was an act of nullification by Virginia, 
but he did not so consider it. There was no direct reference to the 
Sedition Law, and whilst he thought it quite probable it was aimed 
at that law in part, yet it might have been equally necessary to pro- 
tect members from prosecution, under the principles of the common 
or statute law, in the State courts, and that he presumed was the 
reason why it was still found in our Revised Code. Even if it 
were intended exclusively to counteract the Sedition Law — yet a 
copy of the record was not denied, and had its validity been exa- 
mined by the Federal Court under the 25th section of the Judiciary 
act, there was no reason to doubt, that Virginia so far as her ordi- 
nary Legislature was concerned, would have acquiesced. He un- 
derstood that the interposition of the State in her sovereign capaci- 
ty, was, according to the South Carolina theory, an essential ele- 
ment of Nullification. How then could the Legislature, in which 
the sovereign power certainly did not reside, nullify a law of Con- 
gress. It had been often mentioned as a conservative principle of 
our government, that the State Legislatures would "sound the alarm 
to the people" whenever there was an infraction of the compact. 
But why should they sound the alarm to the people, if the right of 
redress were in themselves? Each State, he said, had a government 
composed of two distinct branches — the Federal and the local branch 
— and there was a set of agents employed in the management of 



35 

each. Each set of agents, within its allotted sphere, and as to the 
subjects expressly submitted to it, was liable to no control from 
the other. Each agency had a judicial department, whose province 
it was to confine the action of tliat agency within its constitutional 
limits. There was danger, also, that one agency might encroach on 
the jurisdiction of the otiier, and hence, lor its protection in the 
exercise of its rightful powers, a supremacy was given to the Fede- 
ral agency or government, by that clause of the Constitution which 
says that " The Constitution of the United States and the laws which 
shall be made in pursuance thereof, &;c. shall be the supreme law 
of the land ; and the judges in every State shall be bound thereby," 
&ic. The fear, at that time, doubtless was, not tliat the authority 
of the State Governments would not be maintained, but that the 
rightful authority of the Federal Government would not be acknow- 
ledged; and hence the requisition that the agent conducting the 
former should swear to sup|)ort the Federal Constitution. He 
would take that occasion, he said, to add that, as sovereignty did 
not reside in either of those Governments, that oath was not an oath 
of allegiance from a citizen to a sovereign power, but merely an ' 
oath by one set of agents to support the constitutional authority of 
anotlier set of agents. The manner in which the Federal Judiciary 
sliould act upon a State law repugnant to the Constitution of the 
United States, was pointed out in the 25th section of the Judiciary 
Act. Virginia had asserted the validity of the provisions of that 
section, in her resolutions of 1809, growing out of the Pennsylva- 
nia case of Olmstead, and as long as she acknowledged its force, 
no act of Assembly she could pass, would amount to Nullification, 
because, in the process of enforcing it, the Federal Judiciary might 
arrest and overrule it. This act of '93, like mr,ny acts passed by 
the States, might have conflicted with an act of Congress; but if it 
had been so adjudged and declared unconstitutional, it would itself 
have been thereby annulled. 

But, Mr. B. said, whilst he contended that the Assembly of '98, 
had not, in fact, resorted to any other than constitutional means of 
redress, of which Nullification was not enumerated as one, he did 
not wish to be understood that there were, according to those reso- 
lutions, no other modes of interposition open to the States. The 
third resolution, which he had before cjuoted, asserted the right of 
the States to interpose. The Report of '99, specified the constitu- 
tional means of interposition ; but there were also means of interpo- 
sition, beyond the provisions of the Constitution, and although not 
pointed out expressly in that report, or the resolutions themselves, 
they were necessary deductions from the principles there laid down. 
This extra-consitutional interposition of the States, could be made 
only by the sovereign power — the majority' of the people — and only 
in "those great and extraordinary cases, in which all the forms of 
the Constitution may prove ineffectual against infractions dangerous 
to the essential rights of the parties to it." As long as a State re- 
mained subject to the Federal Constitution, she must abide by its 
operation on her citizens through the medium of the constituted 



36 

authorities. When she appealed from tliat Constitution to her so- 
vereign rights, it was an i:iterposition in her sovereign capacity, and 
must be made according to the rules of the law of nations. As he 
had before remarked, in such case, there were two alternatives, and 
the State might either regard the compact as at an end, or, in other 
words, secede, or else she might con)pel the other contracting par- 
ties to perform their engagements. In general, the weaker parly 
believing itself aggrieved, would choose the former alternative, and 
the stronger party the latter. He had already gone fully into a con- 
sideration of the circumstances under which the former course might 
be pursued: and it was sufficient to add, that precisely the same 
circumstances, and no other, would justify the latter measure. When- 
ever, according to the rules he had laid down, the right to compel 
the other party to perform its promises had accrued to a State, he 
would not deny the right of such State to judge of the means of 
compulsion, or in other words, " of the mode and measure of redress." 
He would even concede that Nullification might be a part of the 
plan of coercion. But then it ought to be distinctly understood 
that Nullification, in such case, was a war measure, differing in 
form but not in principle from real hostility. He had before re- 
marked that when a State acted in its sovereign capacity, without 
the pale of the Constitution, it could only be attacked or coerced by 
the co-states, according lo the usages of war. The obligation was 
reciprocal on the aggrieved State to seek redress, if she sought it 
at all, on the same principle. Nullification was an appeal from the 
Constitution, and pre-supposed a withdrawal from the Union, in 
order to justify such an attack on the other States, as was incom- 
patible with the Constitution. As long as a State acknowledged 
the obligations of that Constitution, her citizens were directly liable, 
in their persons, to its operations, and before she could screen them 
from it, she must in her sovereign character have assumed the re- 
sponsibility of resisting the Constitution, or in other words, throwing 
it ofl' — and not a part only but the whole — for, as was said in the 
Report of '99 in reference to compact, " a bleach of a part may be 
deemed a breach of the whole; every part being deemed a condi- 
tion of every other part." When a State had resorted to Nullifica- 
tion, or any other measures, to compel the co-states to execute the 
compact according to her construction of it, she must either be 
treated as out of the Union, and by making this recurrence to her 
nattu-al right, be considered as having freed herself from subjection 
to the Constitution, for the purpose of coercing the other States, or 
else her citizens must be liable to the penalties of treason, and the 
irregular, unconstitutional action of the organ of her sovereignty 
be disregarded. 

It resulted, he said, from the character of the Federal compact 
and of the parties to it, that when a State interposed in tl'.is extra- 
constitutional manner, and by the preliminary steps he had refer- 
red to, spread the panoply of her sovereignty over her citizens, 
she could then be reached only in her collective capacity. Under 
the confederation, the Congress had power to compel the States 



37 

to perform their engagements, as was maintained by IMr. Jcflerson, 
and not denied, he believed, by any one. Tlie evil was, that the 
laws of the Federal Government could only be executed through 
the intervention of the State liCgislatnres, and if a requisition for 
revenue, for instance, were made, and tlie Slate failed to act in 
raising it, there was no mode of compelling her but by the appli- 
cation of force against her in her collective character. This was 
remedied by allowing the General Govennnent to act directly on 
the persons and property of the citixens of the States, without the 
necessity of intermediate legislation. Under tlse confederation, a 
mere non-compliance or lailure to act on the part of the State, de- 
feated the measures of Congress. Under the Federal Constitution, 
the operation of the law could be obstructed only by the direct 
and positive interposition and resistance of the State. This could 
not be done without the concurrence of a majority of the people, 
avowedly appealing from the Constitution, and when done, the 
State would be precisely in the same situation as if under the con- 
federation, it had refused in its sovereign capacity to obey the re- 
quisitions of Congress. The power of military coercion, admitted 
to exist in the one case, would be the same in the other. Each 
State had laid open its bosom to the action of the Federal Govern- 
ment, and in closing it for the purpose of coercing tlie co-states, 
by nullification or otherwise, it was resorting to a measure beyond 
the Constitution, and which, while it was attended with all the ha- 
zards of secession or even greater, could not be justified by a less pal- 
pable degree of injury and oppression. Nullification, in the only 
sense in which he understood it, was in fact far more dangerous 
than secession, and led more certainly to hostile collision. By se- 
ceding simply, a State renounced the compact altogether — by nul- 
lifying, she sought to compel the confederate States to revive it, 
and observe it according to her views. The co-states might permit 
secession, and be content to preserve the rest of the Union; but 
nullification could be met only by force or submission. It was war 
disguised in the garb of peace, and if persisted in must inevitably 
lead to fatal consequences. He had already expressed the opinion that 
the curious and ingenious devices with which it was armed in South 
Carolina, might prevent collision for a time, but when its authors 
had succeeded in showing it to be an efiectual means of enabling 
them to enjoy all the benefits of a government, and yet disregard 
its laws, they had furnished the most conclusive proof that it must 
end in war or anarchy. 

Nullification, he said, was neither a constitutional remedy, nor a 
peaceable remedy ; and he thought it of much importance that its 
true character should be exposed. i\Iany might be willing to seek 
redress through any amicable means, who would nevertheless revolt 
at the idea of disunion or bloodshed, if it were presented to them 
without disguise. It was a snare for the feet of the unwary. It 
was a false light, to lure the people on with the promise of a peace- 
ful consummation, until they had reached a point at which the ap- 
palling horrors that opened before them, were less to be dreaded 
Idiatioiynil^^ 



38 

promulgated this as a constitutional reinecl3\ Kentucky too, in her 
resolutions, attributed to the pen of our lamented Jefferson, was 
said to have subscribed to the same doctrine. But the lang-uage 
was too plain to admit of doubt. In one of the resolutions, the ex- 
pression was used, " the co-states recurring to their natural right 
in cases not made federal, will," &,c. Again ; it was said, " that 
where powers are assumed which have not been delegated, a nullifi- 
cation of the act is tlie rightful remedy ; that every State has a 
natural right, in cases not within tlie compact, to nullity, of their 
own authority, all assumption of power by others within iheir 
limits." Who could doubt that nullification was here regarded as 
a natural right, and that a recurrence to it was an appeal //oto the 
Constitution rather than to it. And in what mode, he woidd ask, 
could sovereign Slates coerce one another, other than by war, or 
measures of reprisal or retaliation, partaking of the character of 
war. Some gentlemen exclaim against the right of the co-states, 
under any circumstances, to coerce a single State; but would they, 
at the same time, contend for the right of a State to coerce the other 
States, by nullification or otherwise ? If a State should nullify the 
authority of the Federal Government, in any one part, then, "every 
part being deemed a condition of every other part" of the com- 
pact, in the language of the Report of '99, he supposed that Go- 
vernment might nullify so much of the Constitution as authorized 
such State to send Representatives to Congress ; and this would, in 
effect, drive her from the Union. When the controversy was carried 
beyotid the pale of the Constitution, it could be settled only by arms 
or negotiation — by the twentj'-three States coercing the one, or the 
one coercing the twenty-three — by the secession of the one State 
from the co-states, or the secession of the co-states from the one 
State. The arbitrament of a General Convention was a provision 
of the Constitution. It should precede, not follow. Nullification, 
and was not designed to decide appeals from the Constitution. 

Mr. B. said, he knew it was the opinion of some, that, although 
the doctrines of South Carolina were erroneous, yet as she was en- 
gaged in fighting the battle of the whole South, the means by which 
she sought to accomplish the object ought not to be too closely 
scanned or too severely condemned. But he trusted Virginia would 
never be influenced by such a consideration. He wished her on 
this, as on every occasion, to act in a manner worthy of the repu- 
tation she had long enjoyed for justice and disinterestedness. He 
wished her to maintain her rights to the fullest extent, and at every 
hazard, but to maintain them, by proper and constitutional means — 
or if, unhappily, she should ever be driven to measures be- 
yond the limits of the Constitution, to disclose to her sister States 
her true position, and fearlessly abide the issue. He said the influ- 
ence which Virginia enjoyed in this confederacy was owing as much, 
or more, to moral causes, than to her physical power. She was 
amongst the first in asserting our independence, and had borne a 
glorious part in its defence. She had given away principalities to 
enrich the Union, and reserved for herself mountains and sands. 



39 

Poor as she miglit be, and feeble in comparison with some of the 
younger and more vigorous States, she was still respected for her 
generous sacrifices and the magnanimity with which she had ad- 
hered, through good and through evil, to the principles of justice. 
Let her stoop from tliis exalted attitude, to catch the transient bene- 
fits of expediency, and her honored brow would be stripped at 
once, of half its dignity. She had first promulgated those princi- 
ples, which all professed to hold in so much reverence, and surely, 
it was her right and duty to declare the true intent and meaning of 
them. If, instead of disowning this spurious doctrine of nullifica- 
tion, she allowed it, without contradiction, to be ascribed to her, 
and participated in the advantages, if such they might be, of its 
present exercise, with what grace could she hereafter disclaim it, 
when turned, perhaps against her own bosom. If nullification were 
connived at now, it would soon grow into favour, and instead of 
*' the extreme medicine of the State, become our daily bread." It 
were easy, even at this time, to foresee cases in which nullification, 
if acknowledged as a constitutional remedy, might be successfully 
practised. More than one-fourth of the Slates, had similar inte- 
rests in regard to the public lands, and, if one could negative a law 
of Congress, applicable to that subject, and be sustained by the 
others, until overruled by three-fourths of the States, there would 
be an end of the power of Congress over that important public 
interest. The same result might follow from the identity of situa- 
tion of many States, in regard to the Indian tribes ;^ and if these, 
and other combinations, which might readily be imagined, were 
carried out, at the same time, into acts of nullification, the operation 
of the government, on all imporinnt subjects, might be wholly sus- 
pended. The present trial to which our institutions were exposed 
might, and he trusted, would soon be past, but in the midst of its 
alarms, we should faithfully endeavor to maintain those great prin- 
ciples, without which, the Union itself would not be worth pre- 
serving. 

Mr. B. said, the result of his reflections on this subject, was, that 
the question must eventually be settled by Congress, and the sooner 
it vvent before that tribunal the better. He had endeavored to ex- 
plain, upon the principles of natimial law, the equal right of the 
parlies to the compact to judge for themselves respecting infractions 
of that instrument ; and whenever a State had assumed the attitude 
now occupied by South Carolina, it devolved on the co-states to 
decide whether she was right or whether she was wrong ; whether 
she was in the Union or out of it, and what mode of redress, if any, 
was called for by the occasion. Whatever might properly be done 
by the co-states, could equally be done by their common agent, the 
Congress of the United States. If the State had resolved on seces- 
sion, it was for Congress to determine, whether, according to the 
rules he had before laid down, she had, or had not, acquired the 
right. If the Slate had iiHerposed in her sovereign character and 
nullified, it was in like manner to be decided, whether the co-states 
would submit to her demands, or would adopt countervailing mea- 



40 

sures of coercion. So well was this power of Congress to act 
against a State in her collective capacity, understood at the adop- 
tion of the Constitution, that North Carolina proposed as an 
amendment, " that Congress shall not declare any State to be in 
rebellion, without the consent of at least two-thirds of all the mem- 
bers present in both Houses." These were his views in regard to 
the abstract principles involved ; but the application of them must 
depend on the peculiar circumstances of the case. Whilst he as- 
serted the right of Congress to levy war on a State, when her atti- 
tude and her offences justified it, or to employ such means of retalia- 
tion and reprisal or counter-legislation as long as she continued in 
the Union, as might be necessary, he was far, very far from being 
an advocate of force, in any shape, on grounds of expediency. 
It would be, he said, more tlian idle to indulge in speculations as 
to causes which might justif}' this painful resort, but he felt it his 
duty to express his own conviction, that under existing circumstan- 
ces it ougiit not to be thought of in reference to South Carolina. 
He had already said that this State haxl not discharged her duty to 
her sister States, in seeking redress, through all the forms of the 
Constitution, and had put at hazard the peace and happiness of the 
country, at the very moment when the prospect was fairest of re- 
lief from the evil of which she complained. It was true, moreover, 
that a State in maintaining her acknowledged rights, was bound to 
do so, with as little injury to others as possible, and might even 
impair her right by the employment of improper or untimely means 
of establishing it. But admitting all t' at, he could not forget that 
South Carolina had a just and substantial cause of complaint; and 
he, for one, could never lift his arm against her, unless an obstinate 
perseverance in measures destructive of the peace and repose of the 
country, should render it necessary for self-preservation. He had 
but little hope of the efficacy of an appeal to that State, and had 
ceased to calculate on her moderation and forbearance. He looked 
to Congress with anxious expectation, and would favor any steps 
for bringing the matter, as soon as possible, before that body. The 
question would be, whether force s!iould be employed to uphold the 
Government, or whether the Tariff, the cause of all onr woes, 
should be abandoned for the sake of peace and Union ^ He could 
not persuade himself to doubt, that every patriot in the councils of 
the nation, would cheerfully embrace the latter alternative, and fear- 
ful as the appeal might seem, he could wish it were brought at once 
to a decision. Should Congress blindly deny us peace, and Caro- 
lina madly persist in her measures, he would wish to see the Fede- 
ral Government acting on the defensive, and maintaining its autho- 
rity with firmness and moderation, until, under the better auspices 
of another Congress, this fruitful subject of discord might be put 
at rest forever. 

Mr. B. said, in conformity with the views which he had expressed, 
he had prepared some resolutions, which he should offer for the 
consideration of the House, at a proper time, and for the present, 
would content himself with reading them. He objected, he said, 



41 



to the Resolutions of the Committee, because they re-affirm without 
note or comment, that resolution of '98 which was claimed as the 
basjs of Nullification; and thereby .^rave an implied sanction to the 
known and reiterated construction that had been put upon it by 
bouth Carohna. In addition to this, whilst the resokitions solemnly 
protested against Nullification, it was not declared to be unconsti- 
tutional, and the fair inference, in connection with the re-assertion 
of the right to interpose, was, that Nullification, as a constitutional 
remedy, was objected to, not as being wrong in principle, but as 
being prematurely and injudiciously resorted to. He thought 
moreover, that the whole tenor and spirit of the resolutions was in- 
compatible with that firm and impartial attitude which it became 
Virginia to assume, in vindicating the Constitution from the various 
dangers with which it was menaced. Such of the friends of State 
Kights as were equally averse to either extreme of consolidation or 
nullification, had a difiicult and delicate part to act, and not com.- 
posing a majority of themselves, they were, of necessity, sometimes 
m the ranks of one party and sometimes in the other. There was 
one maxim, however, to which his course should ever conform, and 
that was not to condemn a doctrine with his lips, while the whole 
moral influence of his measures was calculated to countenance and 
encourage it. Nullification was revolution, if the term could be ap- 
plied to the acts of sovereigns, and he wished the whole American 
people to understand its character and tendency. He knew, he 
said, the responsibility he incurred, in coming forward with resolu- 
tions on this important subject— how liable he should be to mistjon- 
ception— how incapable he was of avoiding error— and how fa-r a 
mark he should render himself for the shafts of opposition. Had 
he obeyed the dictates of a selfish policy, he should have crouched 
low on the earth 'till the storm had passed, or shunned its fury by 
flying before it. But on such an occasion, he was ready to hazard 
something- to hazard all— in the service of the countrv, and woi-ld 
deem It the happiest incident of his life, if, at any "sacrifice, he 
should contribute even the humblest assistance in attaining the ob- 
ject at which all were aiming. 

He said, he trusted, the opinions which he had advanced would 
not be ascribed to a want of proper respect for South Carolina. 
He had much cause, indeed, to be attached to that Stale. His 
father had freely shed his blood in the war of the revolution, in de- 
fending Its borders from an invading enemy. It was the abode of 
many of his valued acquaintances, and the dearest friend he had on 
earth, was acting a conspicuous part in this fearful drama of nulli- 
fication. There were circumstances too, which it suited not the 
occasion to mention, that gave to this contest, as it concerned him- 
self, a peculiar and touching interest. It had preyed on his 
thoughts— it had lain heavy on his heart, and when the stoutest ad- 
vocate of Carolina, had boasted most of his afl'ection for her, to 
him he might say that " Brutus' love for Caesar was no less than 
his. ' But this was not the time or subject for the indulgence oi 
personal sympathies and predilections. Taking counsel of thr- 
_6. 



42 

farewell words of Washington, he acknowledged but one rule of 
conduct in regard to the intercourse between States or nations, and 
that was an inflexible adherence, under every exigency, to the stern 
and rigorous principles of justice. Let no man charge him with 
indifierence to the fate of Carolina — wronged she would not be — - 
dishonored, he knew, she could not be — but even-handed justice 
demanded of us, an equal regard for the safety and welfare of the 
other States. He had a heart, he trusted, as warm with love of 
country, and anxious for its honor and happiness, as beat in the 
bosom of any living man ; yet it was a love, not of Carolina alone, 
but of the Union — the Union, one and indivisible — the Union co- 
vering in its equal embrace, each and all of those gallant States, 
who, side by side, with the "Old Dominion," stood fast and firm 
in the cause of liberty, through the darkest hours of the Revolu- 
tion. Would t J Heaven that Carolina might yet pause in her peri- 
lous career, and in a becoming spirit of conciliation, patiently 
await that sure relief which must result from the self-correcting 
energies of the government. But should she, in disregard of the 
warning voice and earnest appeals of her sister States, madly press 
on to the fatal goal of disunion — should she in an evil hour, rashly 
resolve to relinquish her high inheritance, and like the lost Pleiad, 
marry herself to a mortal destiny, the remnant of this glorious 
Union, he trusted, might still be preserved in undiminished splen- 
dour, and Virginia still shine on, a bright and majestic star in the 
loveliest constellation which the human eye had ever gazed upon. 



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